Sir Matthew Hale, Lord Chief Justice of England, (1834).
Print Collector—Print Collector/Getty Images
By Lily Rothman
July 28, 2015

Donald Trump lawyer Michael Cohen quickly apologized on Tuesday after he said—in response to an old allegation against Trump—that it’s impossible to rape one’s spouse. Cohen said that he did not actually believe what he had said.

His original statement also happens to be inaccurate—spousal rape is a crime in the U.S. today—but that wasn’t always so.

English common law, the source of much traditional law in the U.S., had long held that it wasn’t legally possible for a man to rape his wife. It was in 1736 that Sir Matthew Hale—the same jurist who said that it was hard to prove a rape accusation from a woman whose personal life wasn’t entirely “innocent,” setting the standard that a woman’s past sexual experiences could be used by the defense in a rape case—explained that marriage constituted permanent consent that could not be retracted.

That idea stood for centuries. Then, in 1979, a pair of cases highlighted changing legal attitudes about the concept.

Until then, most state criminal codes had rape definitions that explicitly excluded spouses. (In fact, as TIME later pointed out, it wasn’t just the case that saying “no” to one’s husband didn’t make the act that followed rape; in addition, saying “no” to one’s husband was usually grounds for him to get a divorce.) As the year opened, a man in Salem, Ore., was found not guilty of raping his wife, though they both stated that they had fought before having sex. But, even as the verdict was returned, a National Organization for Women spokesperson told TIME that “the very fact that there has been such a case” meant that change was in the air—and she was quickly proved right.

The case believed to be the first-ever American conviction for spousal rape came that fall, when a Salem, Mass., bartender drunkenly burst into the home he used to share with his estranged wife and raped her. It’s not hard to see how this case was the one that made the possibility of rape between a married couple clear to the public: they were in the middle of a divorce, and the crime involved house invasion and violence. As TIME noted, several other states had also adopted laws making it possible to pursue such a case, though they had not yet been put to the test.

By 1983, when TIME devoted an issue to “private violence,” 17 states had gotten rid of the rules that made spousal rape impossible to prosecute. In 1991, as part of another cover-story package about rape, the question came up again, revealing another change in attitudes that had yet to occur: A governmental committee the previous year had estimated that about 15% of married women would experience marital rape, and yet few of those rapes would be reported. Though the oft-cited joke about spousal rape—”But if you can’t rape your wife, who can you rape?”—no longer described mainstream opinion, an activist told TIME that many people still thought that marital rape was not real abuse but rather “she has a headache and doesn’t want to have sex and she gives in.”

And yet, when incidents were pursued, the charges tended to stick: the vast majority of cases brought in the first years after 1979 led to a conviction.

Today, spousal rape is illegal throughout the U.S.

SPONSORED FINANCIAL CONTENT

You May Like

EDIT POST