Feminists, Leftists, and revisionist academics have made a habit of slinging one accusation after the next at American history, rarely remaining on one topic long enough or with enough sincerity to improve in their understanding of the relevant context or the facts as returned to them by their critics. One such accusation was presented to me recently by a self-proclaimed ‘feminist’ who resents the so-called ‘patriarchy’ in America — a so-called ‘patriarchy’ which disproportionately sends men off to war to die, which disproportionately taxes men and disproportionately favors women through the welfare system and the courts (particularly on matters of child custody, child support, and alimony). This is to say nothing at all of the fact that women, at the end of the day, hold the most coveted keys of all: they are the gatekeepers to sexual access and, ultimately, they decide which men are good enough to marry, which qualities of character are suitable for the future, and whose bloodlines will continue to live on.
Nonetheless, the malcontents and chronic complainers never stop looking for ‘injustices’, and where they so often fail to find them (for the fact that they’re so often looking in the wrong places), they simply invent them or parrot some fashionable line they’ve picked up along the way. In my latest encounter with that woman who proudly identified herself as a “feminist” with a degree in women’s studies from the College of William and Mary, mere minutes passed before I also encountered her primary talking point: as she put it, “marital rape was legal in America before the 1970s.”
As with so many of the Leftist talking points, they are clever enough to capture imaginations and garner support, and it is not surprising that they even occasionally carry a morsel of truth — or at least enough for a position of plausible deniability. This claim around ‘marital rape’ is little different.
Let me begin by making myself clear on the matter: it is not true that ‘marital rape’ was ever strictly ‘legal’ in the United States.
On the contrary, the concept of ‘marital rape’ is itself a category error, as ‘rape’ (as defined in America before the 1970s) applied exclusively to non-married persons, whereas the sexual affairs between married spouses were treated differently, as private matters under unique assumptions. And remember, there is a notable difference between the legal definition of ‘rape’ and the popular conceptualization of the term: the former emphasizes consent — whether it was given or whether one was old enough to offer it (i.e. ‘statutory rape’); the latter often emphasizes the violence and brutality associated with it.
The fact of the matter is that the elements of violence, particularly extreme levels of violence (often associated with ‘rape’ in its general context), were always subject to legal ramifications regardless of the parties’ marital status.
During that period of time when there was an exception, or a carve-out, where the statutes and conditions for ‘rape’ did not extend to or include married spouses, it was not strictly equivalent to an assertion that ‘marital rape’ was either ‘legal’ or ‘lawful’ or ‘acceptable’; after all, during that period of time in which the exemption applied, the concept of ‘rape’ simply did not extend to the private affairs of married couples — where affairs are more complicated than public interactions between complete strangers or unmarried couples.
As for the matter of sexual affairs under the eyes of the law, consent was treated as an implied or assumed quantity within a marriage, whereas elsewhere it was evaluated on a case-by-case basis, and it still is.
In practice, it turns out, consent has always proven uniquely challenging if not impossible to ascertain (let alone to prove), and this is just one of the many practical reasons that it has always been treated differently in the context of marriage, where the default position can reasonably be assumed — a default position assumed on the basis of two individuals voluntarily choosing and agreeing to enter into the most sacred and serious of contracts; two individuals voluntarily choosing and agreeing to get married and to remain married, affirming the decision each day of the marriage. In many ways, this decision offers as strong of a form of implied consent that could be imagined, and in many ways it is even stronger than the explicit kind given by an unmarried person who might come to regret it, or who might have had doubts. This assumption, in fact, can offer both parties in a marriage protection against any potential false accusations; and where marriage already introduces a whole host of complications and ambiguities, a reasonable default position (particularly in the scope of law) can mitigate the risk to both the parties and the public.
One of the most dangerous implications contained within the accusation that ‘marital rape’ was once ‘legal’ in America is that which suggests that a married man was legally exempt from all matters and all elements associated with ‘rape’; that the law as written enabled a husband to use any and all force against his wife in his desire for sexual gratification. This, of course, is completely untrue, and it creates a caricature of history rather than presenting it in its true and often nuanced form. In this particular case, husbands did not just get away with ‘rape’ as we define it today; they were still subject to laws against assault and battery, and it was in this way that the law viewed this kind of abuse between spouses — omitting the sexual aspects which exacerbate charges and penalties today.
To the extent that any elements of ‘rape’ were prosecutable within a marriage before the 1970s, they remained focused on the provable violence — the aspects free from the complicating factor of consent.
Thus, not only is it untrue that ‘marital rape’ was once ‘legal’ or ‘lawful’ in the United States; it is a category error, a confounding of the details, and in its worst form of revisionist retelling of a history in which husbands are presented as having had complete leeway in using whatever force on their wives in order to achieve sexual gratification. That history is a complete and utter fiction, and a disservice to the history of jurisprudence, the ambiguities of domestic life, the sacred and often complicated institution of marriage, and the challenges attending justice and law enforcement.
The claim that ‘marital rape’ was ‘legal’ or ‘lawful’ is a fallacy which conjures up false images of a history that never existed, but which appears to carry a grain of truth because it seems to accord with the actual facts surrounding a very clear exemption written into the law — a law that had always treated private property and private affairs differently from those of the public square, and a law that still, to this day, struggles to resolve the aforementioned ambiguities of marital disputes.
Ultimately, it seems that the history around the legal treatment of ‘marital rape’ is more of a testament to the shades of grey within society and the deep-seated desires of some to turn them black.
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