Rape is rape, regardless who the perpetrator or the survivor is.
That’s the message Assemblymembers Evan Low, D-Campbell, Cristina Garcia, D-Downey, and state Sen. Dave Cortese, D-San Jose, are hoping to send with two state bills that seek to remove spousal rape exceptions. The legislators joined Bay Area district attorneys and local advocates Monday to discuss the bills.
Currently, under state law, those convicted for raping their spouse receive less punitive consequences compared to those who are convicted of raping a non-spouse, despite rape being defined the same way in both cases.
Spousal rape convicts have shorter sentences, are able to plea bargain and do not have to register as sex offenders unless the act involved the use of force or violence that led to a prison sentence.
“California’s spousal rape law is a slap in the face to all women and sexual assault survivors,” said Michele Dauber, a professor at Stanford University.
She said this is because the “spousal rape double standard sends a terrible message to victims of sexual violence perpetrated by spouses, and to society in general,” that spousal rape is less serious and less harmful to victims than non-spousal rape.
“This in turn may make victims less likely to report these crimes or to seek help when they need it,” Dauber said.
This notion is especially harmful during the pandemic, she noted, because spousal rape and domestic violence cases have increased.
In the last year, overall rapes reported have decreased by 9.4 percent while reported cases of spousal rape and domestic violence have doubled, according to a recent report by the San Jose Police Department.
An incomplete picture
The report may not capture the whole picture because sexual violence is one of the categories of crime that is the most underreported, San Francisco District Attorney Chesa Boudin said.
“This reform is a critical part of empowering and encouraging survivors of sexual assault to come forward to share their story and to help bring justice and closure,” Boudin said. “And prevent these kinds of acts from occurring in the future.”
Santa Clara County District Attorney Jeff Rosen expressed similar sentiments and emphasized how the spousal rape exception is unfair and antiquated.
“As district attorney I must be diligent in ensuring the fair application of laws for criminal offenders,” Rosen said. “To do so, the laws themselves must be fair and it is inherently unfair to allow marital status to be an escape hatch for accountability for rape.”
Rosen said his office has asked for fair sentencing regardless of marital relations, which for him would be a prison term, but “often that’s not the sentence that we get.”
“We’re not only leveling the law, we’re preventing marital rape and promoting safety and respect for all.”Sen. Dave Cortese
“So, the advantage of this law is that it would level the playing field,” Rosen said.
Rosen also noted that the spousal rape exception was the norm when the notion that men had the right to their wife’s body was socially acceptable, but now that is not the case.
That remained the norm until 1979 in the United States, when for the first time a husband was convicted for the rape of his wife.
After that, many states abandoned their marital rape exceptions. However, California remains one of the 11 states that still has a form of spousal rape exception.
The local leaders said the law has remained because many people do not know about the exception or know how prevalent spousal rape is.
In fact, of rapes reported, nearly 10 percent are spousal rapes, Rosen said.
Low and Garcia co-authored the legislation going through the state Assembly and Cortese introduced similar legislation through the state Senate.
“The introduction of the two bills in both houses of the Legislature, I think, shows our unity, our unified commitment to ending this distinction once and for all,” Cortese said. “We’re not only leveling the law, we’re preventing marital rape and promoting safety and respect for all.”