Well Past Time: The (What Seems Fairly Obvious) Argument For Eliminating Ohio’s Spousal Exemption to Rape Law

Photo by Alachua County on Flickr

Gabriel Cripe, Associate Member, University of Cincinnati Law Review

I. Introduction

In Ohio, in some situations, it is legal for a person to rape their spouse.[1] This is because some of Ohio’s sexual assault statutes contain a spousal exemption, rooted in sexist, harmful thinking. Over the last several years, Ohio House Members have attempted to eliminate this exemption.[2] However, the Republican-controlled legislature has repeatedly stalled these attempts. Now, House Bill 121, which would eliminate all spousal exemptions to Ohio’s sexual assault laws, sits in the Criminal Justice Committee at the discretion of Chairman Jeff LaRe.[3] It is well past time for the Ohio legislature to eliminate this antiquated and offensive exemption.

II. Background

The Ohio Revised Code prohibits “sexual conduct with another who is not the spouse of the offender[…]when any of the following applies…”[4] This section then goes on to list (1) drugging someone by force, threat of force, or deception, (2) when the victim is under the age of 13, or (3) when the victim’s ability to resist or consent is impaired because of a mental or physical condition.[5] The next section prohibits sexual conduct by force or threat of force. A later section clarifies that in this instance, marriage is not a defense, so the spousal exemption does not apply.[6] Therefore, it is illegal in Ohio for someone to rape their spouse by force or threat of force, but not if they drug them, if their spouse is under the age of 13,[7] or if their spouse is unable to resist or consent because of a mental of physical condition.[8]

In 2015 and 2017, members of the House introduced bills which would have eliminated the spousal exemptions from Ohio’s sexual assault laws.[9] The bills died in the Judiciary Committee without a single Republican cosponsor.[10] The Ohio Prosecuting Attorney’s Association (“OPPA”) opposed the 2015 bill telling the Dayton Daily News they were worried the bill may allow for false claims of sexual assault made during custody battles.[11] But the proposal is alive again, this time in the form H.B. 121. This bill has bi-partisan support,[12] and two hearings have been held, the most recent in May of 2021.[13]

During this hearing, twelve people and organizations spoke in favor of H.B. 121.[14] Of those speaking in favor was Louis Tobin of the OPPA, changing position since the 2015 bill.[15] In his statement, Tobin said that the OPPA understands there have been concerns in the past about false allegations but that people who commit rape of their spouses should not “benefit from a blanket rule that says we can’t trust victims to be honest about victimization […]”[16] Now, the bill waits for the Committee’s Chairman, Jeff LaRe, a Republican, to call another hearing.[17]

III. Discussion

It is well past time for the State of Ohio to do away with the antiquated and offensive spousal exemption to sexual assault. Spousal exemptions to sexual assault laws have their origins in sexist and harmful thinking that viewed women as the property of their husband[18] and marriage as a blanket consent to all sexual activity.[19] This form of institutional sexism has no place in a 21st century society.

Unfortunately, sexual assault by a spouse is far too common. Researchers estimate that between 10-14% of married women have been sexually assaulted by their husband during the marriage.[20] Those who have experienced spousal rape are not immune from the mental and emotional challenges that so often follow the physical assault. Survivors who have been assaulted by a spouse often experience post-traumatic stress, depression, and intimacy problems.[21] This is not limited to rape that occurs by force.

Furthermore, the current spousal exemption has consequences that stretch outside the realm of criminal law. According to Rosa Beltre, the Executive Director of the Ohio Alliance to End Sexual Violence (“OAESV”) who also spoke in favor of H.B. 121, victims of sexual offenses by their spouse do not qualify for Sexual Oriented Offense Protection Orders because what they experienced does not legally qualify as a sexually oriented offense.[22] These protection orders not only provide survivors with physical safety but also provide survivors with a sense of protection. This exclusion places survivors at an increased risk for further violence and assault and places yet another barrier on their path to healing.[23]

Additionally, sexual assault is already the most underreported crime.[24] Only about 37% of sexual assaults are reported to police.[25] Survivors face many barriers to reporting their crimes such as fear of retaliation or believing the police would not or could not do anything to help.[26] When the offender is a spouse, there are additional barriers such as concern for the well-being of their children or a false belief that the relationship will improve. As Hope Carver, of Women Helping Women, who spoke in favor of H.B. 121 told the Criminal Justice Committee, “Given how difficult it already is for survivors to disclose, why would we uphold an additional, unnecessary barrier in our laws?”[27] The State of Ohio should work to eliminate these barriers and help survivors seek the services they need, not close the courthouse doors.

Any additional barrier placed on those seeking to report sexual abuse should have a persuasive justification. However, the justification that eliminating the spousal exemption may lead to more false reports is not at all persuasive. In fact, it is non-sensical. As Beltre told the committee, “The survivor who reports will still have to demonstrate to the court or jury’s satisfaction that they have met the applicable standard of proof.”[28] There are various layers of protection against false accusations: the prosecutor can choose to not bring charges, or the judge or jury can choose not to convict. The argument that prohibiting certain conduct may lead to more false reports of that conduct could be an argument against many laws. You would never hear a serious person argue we should not prohibit car theft because it may lead to more false reports of car theft. This argument stems from an incorrect belief that reports of sexual assault are often false. However, research shows that false reports of sexual assault make up only about 2-10% of total reports.[29] This rate is similar to false reporting rates of other crimes.[30]

IV. Conclusion

The Ohio legislature should act quickly to sign H.B. 121 and remove this antiquated and offensive exemption from the Ohio Revised Code. Marital rape is far too common, and the legislature should work to eliminate barriers to reporting these crimes. Those who care about the interests of survivors of sexual assault should contact Chairman LaRe and encourage him to call H.B. 121 for an additional hearing. Once voted out of Committee, proponents should contact their representatives and encourage them to vote “Yes” on H.B. 121. It is well past time.

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[1] Ohio Rev. Code Ann. §2907.02.

[2] H.B. 234, 131st Gen. Assemb., Reg. Sess. (Oh. 2015). H.B. 97, 132nd Gen. Assemb., Reg. Sess. (Oh. 2017).

[3] House Bill 121, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-121, (last visited February 10, 2022).

[4] O.R.C §2907.02 (emphasis added).

[5] Id.

[6] Id.

[7] In 2019, Ohio banned marriage for anyone under the age of 17. Associated Press and Michael Tatar, New Ohio law on child marriage takes effect, WTAP (Jan. 16, 2019), https://www.wtap.com/content/news/Ohio-raises-minimum-age-to-marry-to-17-banning-child-marriages-504448471.html.

[8] Ohio’s laws governing sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, sexual imposition, and importuning have similar exemptions. O.R.C §2907.03-.07.

[9] H.B. 234, 131st Gen. Assemb., Reg. Sess. (Oh. 2015). H.B. 97, 132nd Gen. Assemb., Reg. Sess. (Oh. 2017).

[10] House Bill 234, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA131-HB-234 (last visited February 10, 2022).

[11] Lauren A. Bischoff, If a husband drugs his wife for sex it’s not a crime in Ohio … for now, Dayton Daily News (March 5, 2017), https://www.daytondailynews.com/news/change-sought-ohio-marital-rape-law/6F9XIaQI48EjbPH8C3ZA1I/. (last visited February 10, 2022).

[12] Lauren Lanese, a Republican, is listed as a Primary Sponsor of the Bill, and Rick Carfagna and Tom Young, both Republicans, are listed as Cosponsors. The other Primary Sponsor and 10 Cosponsors are Democrats. (House Bill 121, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-121 (last visited February 10, 2022).)

[13] Id.

[14] Id.

[15] Also speaking in favor was the Ohio Alliance to End Sexual Violence, the Ohio Domestic Violence Network, and the Office of the Ohio Public Defender.

[16] Hearing Before the Criminal Justice Committee on H.B. 121, 134th Gen. Assemb., (Oh. 2021) (Statement of Louis Tobin, The Ohio Prosecuting Attorney’s Association).

[17] House Bill 121, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-121, (last visited February 10, 2022).

[18] Jennifer J. McMahon, Marital Rape Laws, 1976-2002: From Exemptions To Prohibitions, University of Georgia, 4-5, (2005), https://getd.libs.uga.edu/pdfs/mcmahon_jennifer_j_200505_ma.pdf (last visited February 10, 2022).

[19] See History of the Pleas of the Crown (1736), “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”) Matthew Hale, Historia Placitorum Coronæ: The History of the Pleas of the Crown (1736).

[20] Raquel Kennedy Bergen, Elizabeth Barnhill, Marital Rape: New Research and Directions, VAWnet (Feb. 2006), https://vawnet.org/material/marital-rape-new-research-and-directions (last visited February 10, 2022).

[21] Id.

[22] Hearing Before the Criminal Justice Committee on H.B. 121, 134th Gen. Assemb., (Oh. 2021) (Statement of Rosa Beltre, Ohio Alliance to End Sexual Violence).

[23] Id.

[24] Statistics About Sexual Violence, National Sexual Violence Resource Center (2015), https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf (last visited February 10, 2022).

[25] Id.

[26] The Criminal Justice System: Statistics, Rape, Abuse & Incest National Network (2022), https://www.rainn.org/statistics/criminal-justice-system#:~:text=The%20Majority%20of%20Sexual%20Assaults,out%20of%203%20go%20unreported.&text=Members%20of%20the%20military%3A%2043,10%25%20of%20male%20victims%20reported (last visited February 10, 2022).

[27] Hearing Before the Criminal Justice Committee on H.B. 121, Ohio 134th General Assembly, (Oh. 2021) (Statement of Hope Carver, Women Helping Women).

[28] Hearing Before the Criminal Justice Committee on H.B. 121, 134th Gen. Assemb., (Oh. 2021) (Rosa Beltre, Ohio Alliance to End Sexual Violence).

[29] Myths About Sexual Assault Reports, Brown University (2021), https://www.brown.edu/campus-life/health/services/promotion/sexual-assault-dating-violence/myths-about-sexual-assault-reports (last visited February 7, 2022).

[30] Id.