Editor's Note: This story contains graphic descriptions of sexual assault.
Under current law, Maryland generally protects people from being prosecuted for sexual assault or rape if the victim is the attacker’s spouse. State lawmakers are considering a bill that would repeal this so-called “spousal defense.”
During a hearing on the proposed legislation Thursday afternoon, members of the House Judiciary Committee learned in graphic detail how this defense was used in a recent case in Montgomery County by a husband accused of raping his wife.
“She had taken prescription drugs and was essentially unconscious as a result of the medication that she was taking,” said Debbie Feinstein, chief of the special victims division of the Montgomery County State’s Attorney’s Office. “Her husband took advantage of that and raped her repeatedly and filmed her while he was raping her.”
Feinstein said the husband was able to use their marriage as a “complete defense” against accusations of rape. However, the prosecution was able to take advantage of one of the few exceptions to this defense: evidence that the husband used force.
“In one of the acts that was recorded, we were able to make an argument that because she moved her leg in response to him trying to position her in a certain way — not to be completely graphic — we were able to articulate a force argument that he ultimately ended up pleading guilty to,” Feinstein said.
Still, she said the sentence was significantly reduced from what it would have been had they been able to prosecute all of the counts of rape recorded in the videos.
The other situation in which the spousal defense doesn’t work is if at the time of assault, the couple is living apart, and either has been living apart for at least three months or has a written separation agreement.
But there are many spouses who continue to live together despite a desire for divorce, said Michelle Smith, a family lawyer and former prosecutor in Anne Arundel County who testified on behalf of the Maryland State Bar Association.
“I have fielded calls from people such as that who have been subjected to sexual abuse in that circumstance,” Smith said. “As you can imagine, it’s a pretty volatile circumstance — still living with a person who doesn’t love you anymore.”
Smith said she has had to tell those women that they can’t prosecute their abusers.
“Sometimes that’s totally debilitating,” she said. “They lose confidence in the system and they don’t go forward towards prosecution. They don’t go forward to get a protective order. They don’t even go forward to get a divorce because they don’t think that the system or our society supports them.”
This defense applies only to spouses. It does not apply to couples who live together but are unmarried, said Lisa Jordan, executive director of the Maryland Coalition Against Sexual Assault.
The law also treats sexual assaults differently from other types of assault.
“We should have crimes apply to people equally,” Jordan said. “We should have assault treated the same way as sexual assault.”
Though marital rape became a crime nationwide in the 1990s, Maryland is one of several states that continues to have this loophole on the books. Minnesota repealed its spousal defense last year.