I grew up in a time that “No means No” was a radical statement. I spent my college years “taking back the night”, rallying at my University for a better funded rape crises center and protesting local news coverage that “blamed the victim”. I volunteered for almost 6 years as a sexual assault victim advocate and spent too many nights in an emergency room explaining the process of evidence collection with a rape kit. I collected signatures to get Rape Shield Laws on the ballot and after I graduated from law school, I worked as a prosecutor focusing on crimes against women and sex crimes.
I have been on the front line of fighting and educating about the crime of rape and while there are still many problems with the treatment of rape victims and the prosecution of the crime, as I often tell my students, “things are so much better than they were.” And I believed that. I did. Until yesterday when I had an occasion to review the current definition of the crime of rape in Ohio. I was stunned by what I learned.
One of the biggest victories in the movement to combat the crime of rape was having the spousal exception removed from rape laws. Until the 1980s, in most states it was legally impossible for a husband to rape his wife. What does that mean? It means that until the mid 1980s, the traditional definition of rape in the United States was, 'sexual intercourse with a female not his wife and without her consent'. It means that, if a husband wanted to have sex with his wife, her consent did not matter. It was as if a marriage license was a free pass for sexual abusers. It was as if a marriage license took away a woman’s right to say no.
In the 1970s and 1980s, a big push began to remove this marital exemption from rape laws. Finally, on July 5, 1993, marital rape became a crime in all 50 states. I remember that day. The last state to change their law was North Carolina. As I watched the news that evening, it felt like a significant victory. It felt like a battle was won. Marital rape finally recognized as a crime in all 50 states. Unfortunately, I did not read the fine print.
I recently was asked to give a lecture about domestic violence, sexual abuse and the current state of the law. I haven’t given this talk since moving to Ohio and so yesterday, in preparation, I pulled out my Ohio statutes to review Ohio’s laws. The law against rape in Ohio reads as follows:
No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender.
In other words, in Ohio the only way a husband can be prosecuted for rape is if the spouses are living separate and apart. The law does not protect women who still live with their husbands. The law does not protect women who are not leading lives separate from their husbands. The law still gives a free pass to the husband who lives in the home. This really seems no different than the archaic laws of the past. What about the woman who is afraid to leave? What about the woman who can’t afford to leave? Do these women not have a right to the protection of the law?
Some may say it is important to have some sort of distinction in order to differentiate between those times when perhaps a woman is “not in the mood” and rape. In my mind the fallacy here is that there is a thin line between sex and rape. That somehow, it’s a continuum with one end very gentle sex and the other end forcible rape. The fallacy is that sex and rape are two sides of the same coin. Rape is a violent act of aggression. Yes, sexual organs are involved, but it is not a sexual act. Sex and rape should not be easily confused.
A quick review of other states’ laws revealed that around 23 states have laws similar to Ohio’s – that marital rape can only be charged if the husband and wife are not living together. I am shocked that we have accepted this as okay. I am not comfortable with the message that a husband living with his wife has free reign to sexually abuse her. I am not comfortable living in a world in which we tell women that as long as they are living with their husbands, they have no legal authority to say no.
I, for one, am going to do what I can to get the law in Ohio changed. Join me. Together we can ensure that “no means no” for everyone -- even wives.