Spousal Rape: Washington Has Only Limited Protection

OLYMPIA - Sarah describes her ex-husband as a handsome, articulate man - and a very careful rapist during their 10 years of marriage.

"People had a really tough time believing anything was wrong. . . . Who wants to hear Superman is gay? It was that kind of syndrome," said the Seattle-area woman, who asked that her name not be used.

Going to the police didn't help. Her husband didn't beat her and didn't leave marks. He simply initiated sex while she was asleep, without her consent and against her will.

Sarah, now in her late 20s, says that for a long time she didn't realize her sex life was different from others. She and her ex-husband had been "high-school sweethearts and I had never been with anyone else. I thought all men behaved that way. He told me all men did."

If she hadn't been married to her assailant, he might have faced a charge of third-degree rape - a criminal charge filed in cases of nonconsensual sex in which the aggressor does not use physical force.

Spousal exemption

But Washington is one of six states that still allows spousal exemption from a charge of this type of rape, according to the National Clearinghouse on Marital and Date Rape. The exemption also applies in Arizona, Delaware, Louisiana, Ohio and Tennessee.

Sarah wants to help change that. Though it won't help her case, she hopes the law will be rewritten to help other spouses.

"In an ideal world, I would charge for third-degree rape. But

now it is up to the prosecutor, who can't charge for that because we were married," she said. Sarah said she is unsure what - if any - charges will be filed in her case.

Under Washington law, third-degree rape occurs when a "person engages in sexual intercourse with another person, not married to the perpetrator: Where the victim did not consent . . . to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct."

Though some see a fine line between third-degree rape and marital diplomacy, others say the issue is who has control over a woman's body.

"It's reminiscent of the old view of marriage that spouses - in part husbands - are free to do what they want with their wives," said Cathy Zavis at the Northwest Women's Law Center.

"What this law is saying is that in marriage, saying no to sex is not enough. You are obligated to consent to nonviolent sex when your spouse wants it, even if you don't want it."

Some women find that saying no or pulling away is not enough to discourage unwanted sex from a spouse, she said. But many such women - especially those whose marriages have been plagued by abuse - are wary of physically resisting unwanted advances.

A lot of unwanted sex in marriage occurs when the women are unable to express themselves because they are unconscious due to illness, sleep or drug or alcohol abuse, said Raquel Kennedy Bergen, author of the book "Wife Rape."

"They are passed out, asleep or they can't actively resist. So there may not be a great deal of violence involved," she said.

Until 1983, the spousal exemption applied to all degrees of rape in Washington state. In 1977, neighboring Oregon became one of the first states to repeal such exemptions, Zavis said. Washington followed suit six years later, and all 50 states now allow prosecution of a spouse for some or all sex offenses involving the partner.

In 1983, Sen. Pat Thibaudeau, D-Seattle, was working as a lobbyist for Washington Women United - one of the women's groups that helped bring about the 1983 change.

Thibaudeau says those who opposed the effort believed the change would be hard to enforce - that some women might lie, or use rape allegations against their husbands in custody hearings or divorce cases.

What works, what will pass

Supporters felt they could go only so far. "There are usually two elements to a bill, what works and what will pass," said Judy Turpin of the Northwest Women's Law Center.

In 1983, lifting the spousal exemption for third-degree rape was asking too much, Turpin said.

Thibaudeau thinks such a change may be possible now - in part because dire prophecies about the 1983 reforms never came true.

"Yes, it does work. Yes, it is enforceable. And no, it didn't destroy the American society," she said. "Rape is rape is rape."

But no one has come forward to propose eliminating the spousal exemption for third-degree rape.

And a lawyer who helped change the law 14 years ago doubts further tinkering would help.

"That's a pretty tough case to the jury," said Leslie Owen, who was director of the Washington Coalition of Sexual Assault Programs when the laws were changed. She is now in private practice in Bethesda, Md.

The most current Sourcebook of Criminal Justice Statistics showed that nationally, spouses were the assailants in 5.5 percent of rape and sexual-assault cases.

Sarah's case is not among the ones used for those statistics. She says she first went to city police and county sheriff's office almost three years ago, but they lost interest when she told them her assailant was her then-estranged husband.

"I probably had more damage done to me over a long period of time than stranger rape because I couldn't get any help from anyone, like women who get help after being raped by strangers."

She knows some will dismiss her allegations as coming from a vengeful ex-wife but says if that were the case, she would have raised the issue during the divorce proceedings that ended her 10-year marriage in 1995.

She won't be seeing a change in the law anytime soon.

No bill was introduced this year into the Legislature that would change the system.