project story: Spousal Rape Campaign

Jennifer Lichstein (on left in image)


In spring 2000, I enrolled in Community Legal Education, knowing that it was a course where students were going to work with community partner groups in efforts at lay legal education. There was a big range of choices for groups and projects that semester, but eventually I decided to get involved in a statewide legislative reform campaign aimed at repeal of Tennessee’s marital rape exclusion. (teacher comment on choosing projects )

In Tennessee, as in a disturbing number of other states in the nation, the criminal code still defines the crime of rape in a significantly different way, depending on whether there is a marital relationship between the rapist and the victim. The basic idea behind Tennessee’s statute is that even if a man forces a woman to have sex with him under circumstances that would otherwise constitute the crime of rape, his act is not considered rape if he is married to the victim, unless he uses a weapon or causes “serious bodily harm” beyond the impact of the rape itself.

Even if a husband rapes his wife and does use a weapon or does cause her serious bodily harm or both, he can only be charged with the crime of “spousal rape.” This is a crime of lesser magnitude than plain old rape, and one that carries a lesser penalty. The only time Tennessee treats rape of a spouse as a crime of equal seriousness to even non-aggravated rape of anyone else is in cases where the spousal rape is carried out in a way that is “especially cruel, vile and inhumane,” when it would be considered “aggravated spousal rape.” (Note that implicit in this scheme is the assumption that forced sex with one’s wife, even when accompanied by serious bodily harm or carried out with a weapon, is not, in itself, especially cruel, vile or inhumane. The provision setting up this definition of aggravated spousal rape was the legislature’s response to the egregious facts in the case highlighted a couple of paragraphs below. )

The spousal rape exclusion is a hold-over from times when a married woman was said to merge legally into the person of her husband. Under the law, a married woman’s identity became one with her husband’s, and legally she became something like his property or his body part. She and her property became legally subject to his will in virtually all ways. In some treatments, the woman’s consent still played a role in the analysis of the problem, but the role was formal only. By the fact of marriage, a woman was deemed to have consented to sex with her husband for all time and under almost all circumstances.

It is true enough that these are old ideas, and true enough that married women now have much more independence under the law than they once did. However, the vestiges of these ideas that are still preserved in today’s marital rape statute have significant implications for contemporary women, given the number of women who are victims of sexual violence at the hands of their spouses. As recently as 1998, Tennessee’s highest court reinforced the marital rape exclusion and restated its continuing force. The court held that a married man who had been convicted of aggravated rape of his wife was entitled to a reversal of the conviction, on the ground that he had proved incontrovertibly that he was married to the victim that and a married man could not commit “aggravated rape” in Tennessee. (view PDF document about this case)

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