WASHINGTON – A top adviser to Donald Trump told the Daily Beast, “there’s very clear case law” that a man cannot rape his wife.
Of course, that isn’t remotely true. Spousal rape is illegal in the United States.
“It’s absolutely shocking to hear an attorney say something like that in this day and age,” said Emily Martin, general counsel at the National Women’s Law Center.
Sixth Judicial District Attorney Christian Champagne, who prosecutes sexual assaults, said, legally, Cohen’s comment was absurd.
“Basically, marital rape is no different than any other type of rape. Just because someone gets married doesn’t mean they give standing consent. Both parties have to willingly say ‘yes’ to a sexual act, otherwise it’s rape, whether they’re married or not,” he said.
But Cohen wasn’t referring to some medieval indignity. Only in 1993 did sexual assaults within marriage become illegal in every state. And nearly half still don’t offer married women the same protections granted to single women.
At least 23 states make it harder for a wife to accuse her husband of rape. Some states require clear evidence of violent force. Others give married women a smaller window to report an assault. In Colorado, there’s a marital exemption for statutory rape, meaning that husbands cannot be prosecuted for rape on the basis of their wives’ young age so long as the sex is consensual.
Many states dole out lighter punishments to convicted husbands.
In Oklahoma, for example, a man can have sex with his unconscious wife as long as the couple is not separated. In Ohio, a man can drug his wife and then legally have sex with her.
Both actions would be considered criminal if done to a single woman. As recently as this year, lawmakers have been pushing to change that.
“It is time to bring Ohio out of the Dark Ages and into the 21st century, where rape is never acceptable, and all survivors have unfettered, equal access to justice,” Rep. Greta Johnson, D-Ohio, wrote in January for the Columbus Dispatch.
Champagne said even in 2015, juries can be reluctant to convict in marital rape cases, “because the prevailing societal attitude is that the government and the criminal justice system should basically stay out of people’s marriages.”
In this age, taking an indulgent view of marital rape should be anathema to people, said Kim Zook, director of Alternative Horizons, a support group for survivors of domestic violence in Durango. “Marital rape is absolutely a form of domestic violence because of the power and control that one person takes over another,” she said.
“There’s no difference between rape within a marriage and between two people who are not married. No should mean no – no matter what,” Zook said.
Four decades ago, women’s-rights activists started gaining momentum in the fight to abolish the so-called “marital rape exemption.” New York, where Trump adviser Michael Cohen practices law, was the first state to strike it down, in 1984.
Cohen’s inflammatory comments last week were prompted by a two-decade-old accusation that Trump raped his ex-wife Ivana. The claim, which Ivana now denies, came from a deposition during the couple’s divorce, published in the 1993 book, Lost Tycoon: The Many Lives of Donald J. Trump.
“You’re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody,” Cohen said. “And, of course, understand that by the very definition, you can’t rape your spouse.”
After near-instant backlash, Cohen said in a statement that he didn’t actually mean it: “In my moment of shock and anger, I made an inarticulate comment – which I do not believe – and which I apologize for entirely.”
Legal scholars trace the roots of marital rape exemption to Sir Matthew Hale, a prominent judge in 17th century England, who wrote in a famous treatise: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract.”
This declaration enforced the idea that a wife was the property of her husband. Her body, quite literally, belonged to him. Hale’s words have been cited in thousands of cases across England and the U.S., said Jill Hasday, a professor at the University of Minnesota Law School and author of Family Law Reimagined.
“Today, as in the 19th century,” she said, “married women do not enjoy the criminal law’s full protection from rape.”
The Centers for Disease Control and Prevention estimates that at least 2 million women per year experience sexual abuse at the hands of an intimate partner. Ten to 14 percent of ever-married women surveyed during a 1998 study at the University of New Hampshire reported at least one sexual assault by a husband or ex-husband.
Indeed, Champagne said marital rape is “one of the most under-reported types of sexual assault.”
Herald Staff Writer Chase Olivarius-McAllister contributed to this report.