Advocates again seek to ban spousal defense for sex crimes

“It’s about time that we make this change,” says Del. Charlotte Crutchfield, D-Montgomery. “Let’s get this bill through and just give married people the same protections.” (AP Photo/Julio Cortez)

State lawmakers are eyeing 2022 as the year Maryland abolishes the use of marriage as a defense against rape.

“This is and should be a no-brainer,” said Del. Charlotte Crutchfield, D-Montgomery, who has sponsored legislation in the House that would eliminate the spousal defense justification.

This is hardly the first attempt by advocates of changing the law. This is the third session lawmakers have presented the legislation, cross-filed as Senate Bill 33 and House Bill 153.

The COVID-19 pandemic shortened the 2020 legislative session, and the bill failed to emerge from a legislative conference committee last year, a casualty of a late vote and the addition of a contentious amendment that dealt with fourth-degree sexual assault and the definition of sexual contact, lawmakers say.

Last year’s pandemic-related precautions also prevented in-person hearings and barred advocates — who play a crucial role in the passage of bills – from coming in person to lobby lawmakers on behalf of the measure.

Lawmakers and advocates see the passage of SB33 as a message to victims and perpetrators that indicates rape is unacceptable.

“We’re trying to propel Maryland forward into 2022 and the 21st century,” said Sen. Susan Lee, D-Montgomery, who has sponsored the Senate bill for the last three sessions.

Lee said members of the Senate’s Judicial Proceedings Committee and Chairman William C. Smith Jr.  have already expressed support for the bill.

Under current Maryland law, a person cannot be prosecuted for certain sexual crimes if the victim is the legal spouse of the perpetrator at the time of the offense. This includes cases of first- and second-degree rape and third- and fourth-degree sexual offenses.

It does not apply to unmarried couples.

Over the years, many states have repealed such laws — often referred to as spousal defense laws. Advocates say these laws are rooted in patriarchal ideas that women are the property of their husbands and are “archaic” and antiquated.

“Your right to control your body should not change just because you’re married,” said Lisae Jordan, executive director and counsel for the Maryland Coalition Against Sexual Assault.

In testimony to the Senate last year, Dr. Christina Dardis, an assistant professor of psychology at Towson University who has published 38 peer-reviewed papers on sexual violence and intimate partner violence, said the marital exemption originates from 18th century English common law that states a woman’s legal existence is suspended during marriage.

Dardis estimated that 10-14% of women are raped by their husbands in their lifetime, and a study indicated that marital sexual violence resulted in “significantly more physical injuries to survivors” than nonmarital sexual violence.

The spousal defense has also been opposed by the Maryland State Bar Association.

“The existence of the spousal defense to rape and other sexual offenses sends a message to society that rape is less serious of a crime when committed against a spouse instead of an acquaintance or stranger,” the MSBA’s family and juvenile law section stated in its written testimony.

Some cases of nonconsensual touches can be prosecuted as a second-degree assault but that’s not always enough for the victim, said Carrie J. Williams, an assistant Maryland attorney general. If a spouse can be prosecuted for assault without consent, so, too, should cases that involve sexual contact.

“It’s important to survivors to be able to have the crime perpetrated against them be called what it was,” Williams said.

In past sessions, bill hearings prompted questions about how consent is agreed upon in marriage. This included whether there’s a need for verbal consent for every touch and where the line should be drawn between consent and refusal.

“Let’s assume that someone does call the police and says, ‘My husband just swatted me on the rear end, and I want to press charges,’” Williams said. “There are multiple safeguards in place that would prevent that prosecution from going forward.”

Despite last year’s defeat in Annapolis, both Lee and Crutchfield remain optimistic.

“It’s about time that we make this change,” Crutchfield said. “Let’s get this bill through and just give married people the same protections.”

Capital News Service contributed to this story.