# Rape Laws and how they have changed **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [September 5, 2013, 10:31pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122 "2013-09-05T22:31:23Z")\ **Posts on this page:** 17\ **Page:** 3
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2013, 3:32pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/41 "2013-09-08T15:32:23Z")
> [@Northern\_Piper](#): > > The common law view was that each spouse, by saying “I do” had given the other the right to “conjugal relations” for the course of the marriage. That is more of a general contractual right. If the wife had the flu and was puking in the toilet every 20 minutes, would the law demand that she put out? I have no evidence, but can’t imagine that. Likewise, if I pay you $3000 and you agree to paint my house, I have a legal right to demand a house painting. But if you fail to do so on my terms, I can’t point a gun at you, shove a paint brush in your hand, or kidnap you and haul you to my house. There is a difference between a legal obligation and forcible private enforcement of that obligation. If back in the day the sheriff, when confronted with my private enforcement of our painting contract, would have pulled his pants up over his beer gut and said that the law wouldn’t get involved, then if that was a common reply, I would agree with you. But I’ve seen no evidence that forcible rape of one’s wife was treated that way. ---
**Author:** ![MsWhatsit](https://avatars.discourse-cdn.com/v4/letter/m/eb8c5e/32.png) [@MsWhatsit](https://boards.straightdope.com/u/MsWhatsit)\ **Post date:** [September 8, 2013, 3:55pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/42 "2013-09-08T15:55:51Z")
> [@jtgain](#): > > . But I’ve seen no evidence that forcible rape of one’s wife was treated that way. Supreme Court case cited up-thread not good enough for you? I suppose it’s heartening in a way that society has changed so much that we have posters in this thread simply unable to believe, against all evidence, that marital rape was legal until fairly recently. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2013, 4:22pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/43 "2013-09-08T16:22:04Z")
> [@MsWhatsit](#): > > Supreme Court case cited up-thread not good enough for you? > > I suppose it’s heartening in a way that society has changed so much that we have posters in this thread simply unable to believe, against all evidence, that marital rape was legal until fairly recently. Which one? I only see a California Supreme Court case saying that the sex of the offender does not offend equal protection or due process. Do you have another? ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [September 8, 2013, 4:30pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/44 "2013-09-08T16:30:52Z")
> [@jtgain](#): > > That is more of a general contractual right. If the wife had the flu and was puking in the toilet every 20 minutes, would the law demand that she put out? I have no evidence, but can’t imagine that. > > Likewise, if I pay you $3000 and you agree to paint my house, I have a legal right to demand a house painting. But if you fail to do so on my terms, I can’t point a gun at you, shove a paint brush in your hand, or kidnap you and haul you to my house. > > There is a difference between a legal obligation and forcible private enforcement of that obligation. If back in the day the sheriff, when confronted with my private enforcement of our painting contract, would have pulled his pants up over his beer gut and said that the law wouldn’t get involved, then if that was a common reply, I would agree with you. But I’ve seen no evidence that forcible rape of one’s wife was treated that way. In South Carolina - it depends - > **[Marital Rape Laws](https://www.criminaldefenselawyer.com/marital-rape-laws.html)** > > Marital and spousal rape are illegal in every state. Learn how state marital rape laws and spousal rape laws work. > [@](#): > > In South Carolina, marital rape (also known as “spousal sexual battery”) occurs when one spouse (the defendant) sexually batters the other spouse (the victim) while using aggravated force or threat of such force. Aggravated physical force includes a weapon, physical force, or extreme physical violence. I’d assume that if I were puking every twenty minutes, then I wouldn’t have the strength to fight off and aggravated physical force would not be necessary, therefore it would not be rape. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [September 8, 2013, 4:33pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/45 "2013-09-08T16:33:36Z")
> [@jtgain](#): > > That is more of a general contractual right. If the wife had the flu and was puking in the toilet every 20 minutes, would the law demand that she put out? I have no evidence, but can’t imagine that. I’m not sure what you mean by that. There’s nothing on the books ordering women to have sex with their husbands. There were laws – and still are, though not in at least most of the U.S. – specifically excluding spouses from the definition of rape. One was quoted at the top of this very thread, by you. ---
**Author:** ![sleepy67](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@sleepy67](https://boards.straightdope.com/u/sleepy67)\ **Post date:** [September 8, 2013, 5:19pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/46 "2013-09-08T17:19:08Z")
> [@blindboyard](#): > > Except it still requires penetration of the victim. Nope, re read it especially 1a(c) and 2a(c) B is the child and 2a(c) makes it a crime to make him/her penetrate any other person in a sex act. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 8, 2013, 5:31pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/47 "2013-09-08T17:31:56Z")
> [@jtgain](#): > > There is a difference between a legal obligation and forcible private enforcement of that obligation. If back in the day the sheriff, when confronted with my private enforcement of our painting contract, would have pulled his pants up over his beer gut and said that the law wouldn’t get involved, then if that was a common reply, I would agree with you. But I’ve seen no evidence that forcible rape of one’s wife was treated that way. Actually, that is almost precisely what did happen.Read [this](http://www.ncdsv.org/publications_thurman_torrington.html) and tell me that if only the assaults were part of a rape the police would have intervened. And pay attention to this footnote on page 7 of the excerpt of the decision regarding the allegation of a policy to provide inadequate or no protection to women complaining of abuse by spouses > [@](#): > > FN3. Such a custom or policy, if found to exist in the instant case, would not be unique. > See Finesmith, supra, at 84-101, where the author outlines the official police guidelines > for dealing with domestic disputes in 30 major American cities. ``` The law didn't demand that the wife put out, and the written law may or may not have (depending upon the exact time ) allowed her husband to beat her into submission. What happened is that police and courts declined to intervene in a private dispute, just like your sheriff and the practice of non-intervention was widely known. But it was only between husband and wife and it wasn't specific to rape. if my husband pointed a gun or beat me to force me to paint the house, he would not have been arrested. If you or any other person did the same thing, you would have been arrested. ``` ---
**Author:** ![MsWhatsit](https://avatars.discourse-cdn.com/v4/letter/m/eb8c5e/32.png) [@MsWhatsit](https://boards.straightdope.com/u/MsWhatsit)\ **Post date:** [September 8, 2013, 6:10pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/48 "2013-09-08T18:10:43Z")
> [@jtgain](#): > > Which one? I only see a California Supreme Court case saying that the sex of the offender does not offend equal protection or due process. Do you have another? Oregon v. Rideout. Post 29 in this thread. ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [September 8, 2013, 6:40pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/49 "2013-09-08T18:40:20Z")
> [@Nava](#): > > What do you call it, if she was supposed to have sex with him any time _he_ wanted? > [@grude](#): > > Supposed to is a societal standard, not a legal one. > > It makes it sound like a husband could have called up the cops and said he is horny and they would come restrain the wife so he could rape her or something. What if his wife left him, until the divorce was finalized would the cops go kidnap her and bring her back to be raped whenever he wanted? It was a legal standard too. If the wife left, yes, she could be brought back by the authorities. Even if she was fleeing physical or sexual abuse, she had no legal right to leave her husband unless she was actually getting a divorce. It wasn’t that long ago that you couldn’t get a divorce unless you could prove adultery or a couple of other immoral acts. We forget what times were like before no-fault divorces. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [September 8, 2013, 10:41pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/50 "2013-09-08T22:41:25Z")
> [@MsWhatsit](#): > > Oregon v. Rideout. Post 29 in this thread. That isn’t a Supreme Court case, its an Oregon case. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2013, 11:05pm UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/51 "2013-09-08T23:05:46Z")
> [@Lynn\_Bodoni](#): > > It was a legal standard too. If the wife left, yes, she could be brought back by the authorities. Even if she was fleeing physical or sexual abuse, she had no legal right to leave her husband unless she was actually getting a divorce. > > It wasn’t that long ago that you couldn’t get a divorce unless you could prove adultery or a couple of other immoral acts. We forget what times were like before no-fault divorces. I’ll admit that I wasn’t alive in those days, but I’m still incredulous. Do you have any cite for a husband going to Sheriff Andy Taylor and demanding that he haul his wife back home because she is staying at her sister’s house in violation of the marriage agreement? And then Andy says, “Absolutely, sir. Your wife can’t do that to you!” and he then (with force presumably) picks her up and drops her off at home. What if she doesn’t stay? Could she be charged with a crime? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [September 9, 2013, 12:12am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/52 "2013-09-09T00:12:23Z")
To be fair, really over-the-top abusive husbands were not well regarded at the time either. Just that sex-on-demand _ **by itself** _ was not considered abuse. If Sherriff Andy found the dude distasteful he may have said, “Look, I can tell her she must come back but I can’t actually arrest her, it’s a domestic matter between the two of you.” ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [September 9, 2013, 2:35am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/53 "2013-09-09T02:35:47Z")
> [@](#): > > And then Andy says, “Absolutely, sir. Your wife can’t do that to you!” and he then (with force presumably) picks her up and drops her off at home. What if she doesn’t stay? Could she be charged with a crime?[URL=“[http://boards.straightdope.com/sdmb/editpost.php?do=editpost&p=16647864](http://boards.straightdope.com/sdmb/editpost.php?do=editpost&p=16647864)”] I don’t know if she was forcibly picked up…but she could be charged with abandoning her husband. He could then divorce her and get everything, including total custody of any kids. She probably had a high school diploma, at most, and absolutely no job skills or experience. Remember, she didn’t have credit in her own name, either. So she’s homeless, jobless, and if she’s lucky, her parents or family will take her in, though she is considered a bad woman. ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [September 9, 2013, 2:46am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/54 "2013-09-09T02:46:30Z")
This [link](http://www.hastingspress.co.uk/history/19/overview.htm) is for England, not for the US, but still, pay attention to that sixth and seventh paragraph: > [@](#): > > Every man had the right to force his wife into sex and childbirth. He could take her children without reason and send them to be raised elsewhere. He could spend his wife’s inheritance on a mistress or on prostitutes. Sometime, somewhere, all these things - and a great many more - happened. To give but one example, Susannah Palmer escaped from her adulterous husband in 1869 after suffering many years of brutal beatings, and made a new life. She worked, saved, and created a new home for her children. Her husband found her, stripped her of all her possessions and left her destitute, with the blessing of the law. In a fury she stabbed him, and was immediately prosecuted. > > ``` > If a woman was unhappy with her situation there was, almost without exception, nothing she could do about it. Except in extremely rare cases, a woman could not obtain a divorce and, until 1891, if she ran away from an intolerable marriage the police could capture and return her, and her husband could imprison her. All this was sanctioned by church, law, custom, history, and approved of by society in general. Nor was it the result of ancient, outdated laws: the new (1857) divorce act restated the moral inequality. Mere adultery was not grounds for a woman to divorce a man; however, it *was* sufficient grounds for a man to divorce his wife. > > ``` ---
**Author:** ![MsWhatsit](https://avatars.discourse-cdn.com/v4/letter/m/eb8c5e/32.png) [@MsWhatsit](https://boards.straightdope.com/u/MsWhatsit)\ **Post date:** [September 9, 2013, 3:01am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/55 "2013-09-09T03:01:20Z")
> [@Dangerosa](#): > > That isn’t a Supreme Court case, its an Oregon case. Oops. Read my previous comment as: Oregon case cited up-thread not good enough for you? ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [September 9, 2013, 10:40am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/56 "2013-09-09T10:40:48Z")
> [@JRDelirious](#): > > To be fair, really over-the-top abusive husbands were not well regarded at the time either. Just that sex-on-demand _ **by itself** _ was not considered abuse. You may wish to look up the term “[skimmington](https://en.wikipedia.org/wiki/Skimmington)”. It wasn’t just extremely abusive men who were regarded harshly, but male victims too. ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [September 9, 2013, 11:25am UTC](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122/57 "2013-09-09T11:25:22Z")
> [@Lynn\_Bodoni](#): > > This [link](http://www.hastingspress.co.uk/history/19/overview.htm) is for England, not for the US, but still, pay attention to that sixth and seventh paragraph: From “[The Legal Subjection of Men](http://menstribune.com/Belfort_Bax.html)”, printed in 1908: > [@](#): > > No man can obtain a divorce except by a terribly > expensive process in the High Court at a minimum > charge of forty pounds. This means a denial of justice > to the vast bulk of the male population. **Any woman, by > the asking for it, can get a summary separation and > confiscation of her husband’s property, and an order for > her maintenance out af his earnings from the nearest > police court.** Recent Statutes confer this privilege. > This process, which costs only a few shillings, the > husband has to pay for. > … > A woman can habitually repudiate her duties, neglect > her children, pawn her husband’s and children’s clothes, > waylay her husband at his work, and disgrace him be- > fore his friends, procure his dismissal, assault him, and > there is no remedy open to the working man. To tell > him that he can appeal to the Divorce Court at a cost of > forty pounds, is a piece of savage and scornful irony. > He might as well be told that he can, if he has the > money, promote a private Act of Parliament, at the cost > of some thousand pounds. > … > **A woman can have her husband arrested and sent to > gaol if he leaves her**, even though her own violence and > cruelty led to his flight. The husband gets no assist- > ance from the law if his wife deserts him. > The method in which this privilege has been worked > out was simple enough. It consisted in abolishing all > the husband’s control over the wife’s actions and > property, and, on the other hand, retaining all the wife’s > power of legal compulsion on the husband, with added > powers. > These changes have practically come in during the > period since 1857, when a secular court for divorce was > established. Under the earlier law, prior to, and long > after the Reformation, ecclesiastical censure restrained > the deserting wife. But the secular common law also > lent its aid to the husband. **He could prevent her by > force from leaving his house, and could bring her back > if she had escaped. More, he had an action for > “harbouring” against any of her relations or strangers > who assisted her in straying away–as late as George > III.** a husband’s action for damages on this ground was > successful. > > ``` > An exception to the general rule, and even this was of > > ``` > > doubtful validity, was introduced under Henry VIII. A > wife could be assisted to leave her husband’s house if > she were journeying to the Bishop’s Court to seek a > separation. > But the latest feminist rulings of the judges have quite > swept away such fine distinctions as those of 1857. > (1) By their fiction of “cruelty”–anything a > husband does being “cruelty”–they have enabled > any woman who likes to leave on a pretended > excuse. > (2) By procuring the passing of an Act (Lord > Chancellor Cairns’ Act, 1884) **the Courts got rid of > their theoretical duty of ordering a wife to be > imprisoned for refusing to obey an order of > restitution of conjugal rights. Nothing in the way > of compulsion by restraint of person or property is > to be applied to the wife. But by a cynical stroke > this Act provides that if a husband refuses to obey, > his property is to be confiscated. And, more out- > rageous than all, the wife’s power to procure the > arrest and imprisonment of the husband by the > magistrate’s Court is left untouched.** > A case in which the wife of a clergyman caused her > husband to be **arrested on board a ship going to > America, and sentenced to hard labour by alleging his > desertion,** deserves special notice. True that the clergy- > man, having means, could appeal to a higher Court and > have the iniquitous sentence quashed. But the working > man would have had to serve his allotted term in the > prison cell. And no one has ever suggested that this > wife should be punished. (See the case of the Rev. > Peter MacDonald Neilson, June, 1894.) > The notorious Jackson case furnished another pic- > ture. Here a woman is upheld by the Court of Appeal > in deserting her husband and condemning him to life- > long celibacy. He has absolutely no remedy against > her. If she commits any civil injury against any one, he > can be sued. If he should live with any other woman, > Mrs. Jackson can get a portion of the property confis- > cated and settled on herself. She is not obliged to ask > for a divorce, she can still keep him bound by limiting > her demand to a judicial separation. > The criticisms which some lawyers have made on this > decision are wide of the mark. It was quite in harmony > with the later current of authority, though in violent > conflict with the settled Common Law of last century. > Tie the man and let the woman free, is the prevalent > judicial theory of to-day. > Though the judges could obtain the passing of Lord > Chancellor Cairns’ Act, 1884, freeing the wife from > imprisonment for desertion, there has been no sugges- > tion of promoting an Act to enable a man in Mr. > Jackson’s position to obtain a divorce. > So enamoured have they become with the new doctrine > of feminine predominance in the relation of marriage, > that the judges of the House of Lords have actually > extended to Scotland their theory of tying the man and > letting the woman free. For over three centuries the > law of Scotland has provided that desertion for four > years on the part of either spouse is ground for absolute > divorce, with right of second marriage. For all that > long period the Act has been found most salutary in > effect. Now the judges in the House of Lords, in the > year 1894, have practically repealed it. **They have > refused to grant a Scotch litigant divorce, although his > wife has deserted him for over four years, and at the > same time abducted his child. They allege, as the > ground for this astonishing “new readings” of the law, > that the husband did not really want her to return.** As > this can be alleged in every case in which a husband > does not slavishly implore a shrew to come back, the > result is that when a vindictive woman wants to prevent > the man remarrying, she can successfully resist his claim > for divorce. This salutary Act of Scots Parliament has > been offered up as a whole burnt offering on the altar of > the dominant female. In short, yes, a man could at one point have his wife brought back to him by force. But at the same time, and even after that practice was abolished, a man could also be dragged back to his wife by the police if he tried to escape her. By that time divorce was also much easier for a woman to obtain and didn’t involve the presumption that she would end up destitute in the gutter, but rather that she would receive maintenance payments, custody of the children, and any property she had before marriage, which had traditionally been forbidden from being transferred to the ownership of the husband. In addition to which, a man could be forced to marry by an accusation that a proposal had been made, which a woman could not. To break of an engagement was an offence, although only for the man, and a woman’s word was generally enough evidence for a court that an engagement had taken place. Also, although it may be true (per Lynn Bodoni’s link) that adultery wasn’t grounds for divorce for a woman, as cruelty wasn’t for a man, a man who committed adultery with a married woman could be sued by the husband, which was not the case with the sexes reversed. And of course a man was responsible for the debts of his wife, while her property was protected. [Previous page](https://boards.straightdope.com/t/rape-laws-and-how-they-have-changed/668122.md?page=2)