Another beautiful morning in America, another Republican with fun, fresh opinions about rape: this week’s first-place winner in the “You Can’t Possibly Mean That” Olympics is Donald Trump’s attorney Michael D. Cohen, who told The Daily Beast, “You cannot rape your spouse. And there’s very clear case law.”
Cohen meant this as an ironclad reason for why his boss cannot possibly have raped then-wife Ivana Trump in 1989, even though Ivana’s book describes something that sounds very much like rape. But he also joins a surprisingly long and depressingly current list of men (and a few women) who may be quite conscious of what rape is in some contexts (long live Trump’s “someone’s doing the raping” interview) but are still pretty sure one spouse can’t possibly rape another. Pop an antidepressant of your choice and let’s dive in.
Judicial Dudes
Michigan Court of Appeals, 1986
Until the 1970s, every state in America had an exception in its rape statutes for spouses; the first state to criminalize spousal rape was South Dakota in 1975. By 1987, 25 states made it a crime for a man to rape his wife if the two were living together.
As you might imagine, some scenarios didn’t fall neatly into that formulation. The New York Times outlined the case of Rosanna Hawkins, a Michigan woman who was raped at knifepoint by her estranged husband Eugene in 1981, who broke into the house where she had been staying since they separated. Still, an appeals court ruled in 1986 that teeee-chniccalll-yyy it wasn’t rape. From the Times:
The court ruled that, legally speaking, Mrs. Hawkins could not have been ‘’raped’’ by her husband because in Michigan it is not a crime for a man to sexually assault his wife unless they are living apart and one has filed for divorce. And Mrs. Hawkins’s divorce filing was not valid because Michigan requires that a person be a resident for at least six months in order to file for a divorce.
By 1993, all 50 states had removed the exceptions that made it impossible for someone to be prosecuted for raping his spouse, or those exceptions had been declared unconstitional. (Nobody told Donald Trump’s lawyer, who has been practicing law since 1992.) In June, the Daily Beast’s Samantha Allen, based on a report from AEQuitas, outlined the eight states—Alaska, Arizona, Idaho, Maryland, Minnesota, Mississippi, South Carolina, and Washington—where spouses are still subject to some sort of exemption in some offenses. And she pointed to other states, like Ohio, where marital rape is simply handled differently: “[C[harged under a different section of criminal code, restricted to a shorter reporting period, held to a different standard of coercion and force, or given a different punishment.”
Lest you think this is merely an archaic sort of law that remains on the books but isn’t used, we give you:
Marion Superior County Judge Kurt Eisgruber, 2014
Judge Eisgruber sentenced David Wise to no jail time whatsoever for drugging and raping his wife while she slept over a period of years. He also suggested it might be nice for Wise’s wife to forgive him and move on. For drugging and raping her. For years. While she slept.
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