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An evolution of law: Spousal rape recently prosecutable
An evolution of law: Spousal rape recently prosecutable

If Blue Lake Police Chief David Gundersen's wife had made the same rape allegations 30 years ago that she made last month -- or in some other states -- Gundersen wouldn't have been charged with a crime.

Spousal rape laws, or even the concept of raping a spouse, are pretty new developments. In fact, until the late 1970s, spouses were typically excluded from sexual assault laws.

Until 1993, North Carolina's rape law stated that “a person may not be prosecuted under this article if the victim is the person's legal spouse at the time of the commission of the alleged rape or sexual offense, unless the parties are living separate and apart.”

Currently, spousal rape is a crime in all 50 states but the degrees vary greatly.

In California, the penal code currently considers rape and spousal rape separate offenses and, while they come with similar sentences, there are some nuanced differences that illustrate how they are still considered to be very different crimes.

While some argue keeping the statutes separate is important, others feel the separate offenses compromise victim privacy and diminish the seriousness of spousal rape.

According to Michelle J. Anderson's 2003 book “Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates,” the formation of American rape laws took root in English common law. The property theory, Anderson wrote, played a huge role, as women were considered to be the property of men.

”The rape of an unmarried woman transgressed against her father and the rape of a married woman transgressed against her husband,” Anderson wrote. “The rape of a married woman by her husband himself was not a transgression at all because a man was allowed to treat his chattel as he deemed appropriate.

”Because the rape of a married woman was a violation of her husband's property,” Anderson continued, “prosecuting a husband for raping his wife made no more sense than indicting him for stealing his own property.”

State laws began to change in the late 1970s when reformers challenged the spousal rape exemptions in courtrooms and legislatures, but in some cases, change was slow in coming.

As of 2003, it still wasn't a crime in 20 states for a husband to have non-consensual sex with his wife while she was mentally incapacitated or physically helpless, according to Anderson's book.

California adopted a spousal rape law in 1979, but it only included rape by force, while the existing rape statute included a variety of manners of rape, including rape by coercion, rape by threat and rape when the victim is incapable of consent.

Nancy Lemon, a lecturer at University of California Berkeley School of Law and domestic violence expert witness, said she had a hand in changing those aspects of California's spousal rape laws in the early 1990s.

The push, Lemon said, was to make the spousal rape statute a mirror image of the its non-spousal counterpart.

”The main goal was just to make it equal,” Lemon said, adding that she and others faced some opposition in changing the law.

“I think No. 1 was the assumption that when people marry, they consent to sex -- that wives consent to sex at any time, and don't really have the right to say no.”

Over the course of several years, Lemon and her colleagues were largely successful in making the statutes similar, but they couldn't get enough support to make them identical.

Currently, offenses in the two statutes are pretty much identical, and carry the same sentences. There is one notable difference, however.

While anyone convicted of violating any section of the non-spousal rape statute is required to register with the state as a sex offender, only those convicted of raping their spouse by force or fear are required to register.

That means if Gundersen is convicted of all 12 counts of spousal rape with the use of an intoxication and anesthetic substance that he faces, he will not have to register as a sex offender.

However, if convicted of the single count of transporting or kidnapping a second victim for the purpose of committing rape, Gundersen would have to add his name to the registry.

Gundersen has pleaded not guilty to all of the 19 charges he faces, and is being held on $1.25 million bail awaiting his April 11 preliminary hearing.

The statute of limitations is also different for spousal rape and other rape charges in California. Under state law, spouses have one year to report rape allegations while non-spouses have between three and 10 years to report.

The differences between spousal rape and other rape laws in California are far less than in other states. For instance, Arizona, South Carolina, Tennessee and Virginia all have lesser penalties for spousal rape than for other rapes, no matter the force used or the injury inflicted.

Speaking in general about California law, North Coast Rape Crisis Team Executive Community Outreach Coordinator Paula Arrowsmith-Jones said the largest problem isn't in the letter of the law.

”The real problem is not the statute itself, but in the application of the law and the perception of the public,” Arrowsmith-Jones said. “Though it may or not be the intent, the affect it has is to minimize it. It gets treated as though it's different from rape.”

Arrowsmith-Jones also said the public perception often is that spousal rape is somehow less of a crime.

”It's confusing to people because the way rape is presented to us in movies and stuff is rapists jumping out of bushes, and that's really the least common way to be raped,” Arrowsmith-Jones said. “The attitude in our society is such that the closer the (perpetrator and defendant) are, the harder it is for our community to understand that it was a violent act and not just sex.”

Lemon said many believe the psychological impacts of spousal rape can be just as severe as of rape committed by a stranger, if not more.

”Many people argue that it is more traumatic because it is a betrayal of a more fundamentally trusting relationship,” she said.

Many say the spousal rape designation can also make some victims less likely to come forward, as they wouldn't have the same expectation of privacy as a non-spousal victim.

Others feel there are some positives to keeping the statutes separate. Lemon said it assures that meaningful statistics can be kept distinguishing the prevalence of spousal rape from other types of rape, and some say it highlights the fact that violence and sexual assault can just as easily happen in the home as in a dark alley.

Even if the statutes are kept separate, Arrowsmith-Jones said they need to be equal, and the differences in the statute of limitations and sex offender registry just serve to treat spousal rape as less of a crime.

”Why, as a community, would we say that one is more serious or more dangerous?,” Arrowsmith-Jones asked.

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com
Thadeus Greenson/The Times-Standard
Article Launched: 03/23/2008 01:30:11 AM PDT