Marital & Acquaintance Rape: Definition, History, & Laws

Instructor: Kenneth Poortvliet
Consent is always a defense to a charge of rape, but it is often difficult to prove. In this lesson, we will look at the history and the issues surrounding marital and acquaintance rape.

He Said, She Said

Let's say you go to your girlfriend or boyfriend's house and spend the night just like many nights before. A few days later, the police arrest you and charge you with rape. How do you prove it was consensual?

On the other hand, let's say your husband or wife wants to have sex, and you say no. He or she pushes you down and doesn't take no for an answer. You go to the police and say you've been raped, and when they find out that it was your spouse, they decline to charge him or her.

These are issues that come up when a person is accused of a sexual assault by someone they know, including their spouse.

What is Rape?

Rape involves three main elements:

  1. sexual penetration of a person,
  2. by force,
  3. without the consent of the person

In most modern rape statutes, all three of these must be present before someone is convicted of rape. Sexual penetration requires that either a man's penis or an object is used for penetration of the vagina or anus. This also applies when a woman is charged with the rape of a man, and the penetration requirement is met by the woman causing the penetration. If there is no penetration, then there still might be a lesser charge of sexual assault, but not rape.

Lack of consent is a key component to rape and is often the issue in contention at a trial. If consent is proven, then there is no rape. Consent is difficult to prove or disprove. Because of this, most rape laws require there to be some force used by the perpetrator. This ''force'' is not proven only by evidence that the defendant physically overwhelmed them by violence; it also includes the threat of violence or some other form of coercion.

History of Marital Rape

Historically, there was no charge for marital rape. Once a man and women were married, then any act of intercourse was consensual by law. However, if a man physically beat his wife, he could have faced charges of assault, but not rape. In some cases where the sexual assault went beyond intercourse, then the man might be charged with sodomy or deviant sexual assault.

It was likewise impossible for a man to claim his wife raped him, and even an unmarried man couldn't claim rape because rape statutes required that the victim be a woman.

In 1979, a Massachusetts man was the first known case where a man was charged with raping his wife. In this case, he was separated from his wife, and the two had filed for a divorce. He burst into her home and forcibly attacked her and had intercourse. The appeals judge upheld the charges of rape and burglary (he no longer lived there) but said that the case was more about violence and did not overturn the law that prevented a married woman from claiming rape.

A few years later, a court in Florida found a man guilty of raping his wife even though the two were married and living together. This was the first time a husband living with his wife was charged and convicted of raping his wife. Unfortunately, an appeals judge reversed the conviction citing the age-old defense.

However, by 1993, all states had changed their laws making it a crime to rape any person, including a wife. For many years to come, and some say even today, it is difficult for a spouse to be convicted of rape by the other spouse because of the issue of consent.

Acquaintance Rape

Also known as date rape, acquaintance rape occurs when the defendant and the victim know each other. Surveys show that over 70% of rape victims knew their attacker. Sometimes it gets murky because the two might have just met at a nightclub or were on their first date. However, what separates these from other forcible rapes is that the choice of the victim wasn't random.

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