Ohio House passes bill to end marital rape loophole

COLUMBUS, Ohio (WCMH) – A loophole in Ohio law allowing people to rape their spouses with near impunity is one step closer to the chopping block.

The Ohio House on Wednesday voted 74-1 to pass House Bill 161, which would end the spousal immunity for rape, sexual battery and other crimes of sexual violence. The bill, several versions of which have been introduced since 1985, had never received a floor vote and will now move to the Senate for consideration.

Rep. Jessica Miranda (D-Forest Park), one of the bill’s sponsors, said on the floor before the vote that its passage would correct an “arcane” area of the Ohio Revised Code remnant of a “bygone era.”

“We should have a criminal justice system that treats people equally. We should have a criminal justice system that empowers survivors to seek justice. And we should have a criminal justice system that believes people when they say that they have been wronged,” Miranda said.

Ohio is one of a handful of states whose criminal code grants people immunity from sex crimes when committed against their spouse. Although Ohio law allows for the prosecution of rape against a spouse when the perpetrator used violence or threat of force, it does not recognize spousal rape as a crime when alcohol or drugs are used to incapacitate the victim, or if the victim was otherwise coerced.

Rep. Bill Dean, a Republican from Xenia, was the only legislator to vote against HB161.

Since 2015, various lawmakers have introduced four failed bills attempting to eliminate the loophole, despite having bipartisan support – and support from sexual violence prevention organizations, prosecutors and law enforcement. Most never made it out of committee.

HB161’s passage in one legislative chamber marks the furthest any such attempt to eliminate the spousal rape exemption has gone in recent history, according to legislative records dating back to 2015. Miranda said that lawmakers have introduced repeals of the immunity since 1985 -- but none had ever made it to the floor.

Emily Gemar, public policy director for the Ohio Alliance to End Sexual Violence, said closing the marital rape loophole has been a priority of the alliance since its founding about a decade ago. What made this time different, she said, is that legislators were willing to listen to survivors -- who submitted hours of testimony about their experiences.

"This progress that we've seen today, I think, is really due to them and their voice in the process," Gemar said.

The incidence of sexual violence within marriage is greatly underreported, as are most sex crimes. One of the most comprehensive studies about gender-based violence, the 1998 U.S. Department of Justice’s National Violence Against Women Survey, found that a quarter of women said they were raped or physically assaulted by a current or former spouse. 

With a national reporting rape of about 20%, the survey found that the majority of victims who did not report spousal rape said they believed police could not – or would not – do anything on their behalf. 

More recent research affirms the high rates of victimization in intimate partner relationships; according to the 2017 National Crime Victimization Survey, for example, a third of those who reported rape said the perpetrator was a current or former partner.

Rape is often a component of abusive relationships, according to advocates and research, yet under current law, most victims cannot seek Sexually Oriented Offense Protection Orders against their spouses. HB161 would allow such protection orders, as well as allow victims and survivors to testify against their spouses on trial for rape and other sex crimes.

"We can't have two separate systems of justice in Ohio depending on your legal relationship to another person -- that is absurd," Gemar said.

She added that the House's passage of HB161 holds dual significance: It is vital to addressing gaping holes in the legal system that survivors fall through -- and it also can keep conversations about sex, consent and healthy relationships in the public light.

"Our hope is that it is reducing the stigma, that our advocacy towards this issue is taking blocks away that build up the stigma around sexual violence," she said.

The origin of the spousal rape exemption is unclear, but one of the first mentions in common law was in 1736, when English judge Sir Matthew Hale declared that marital rape could not be prosecuted because, in entering into marriage, a woman “hath given up herself in this kind unto her husband which she cannot retract.” U.S. law, originally based on British common law, followed suit.

The spousal exemption to rape was recognized by U.S. courts as early as 1857, according to an academic article by Michael Freeman, published by the American Bar Association. A Massachusetts court referred to Hale’s declaration when determining that marriage is a sufficient defense against a rape accusation. 

In 1974, Michigan was the first state to recognize spousal rape some circumstances, although that law is much more similar to Ohio’s existing law than to a complete elimination of the exemption. New Jersey and Oregon were the first states to eliminate the exemption entirely, according to Freeman.

“Legislative reform of the marital rape laws should, it is thought, have considerable support. Not only is the case for reform overwhelming, but it should appeal to such disparate groups as conservatives (there would be more convictions) and feminists,” Freeman wrote in 1981. “But reform has been very slow and tentative.”

In Ohio, effort has been underway to eliminate the marital rape exemption for nearly four decades. Its unanimous passage out of committee in October was a historic achievement, Miranda said, as was the first floor vote on Wednesday.

Rep. Brett Hillyer (R-Uhrichsville), also a sponsor of HB161, echoed Miranda's sentiment, calling the vote a "historic milestone" in addressing sexual violence.

“One does not give up their protection of equal justice under the law simply by saying ‘I do’ at the altar,” he said.