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.
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.
Meanwhile, some of your lawmakers remained honestly puzzled about how marital rape could even be a thing:
Virginia Delegate Dick Black, 2002
Was pretty sure it was impossible to rape one’s wife if she was in bed wearing a nightie and so forth:
I don’t know how on earth you could validly get a conviction in a husband-wife rape when they’re living together, sleeping in the same bed, she’s in a nightie and so forth. There’s no injury, there’s no separation, or anything.
Utah State Rep. Brian Greene, 2015:
Was pretty sure it’s not a crime to rape an unconscious person if she happens to be someone you have be-ringed. He worried that tightening the laws around raping passed out people could inconvenience spouses:
“It looks to me now like sex with an unconscious person is, by definition, rape. I hope this wouldn’t happen, but this opens the door to it: an individual has sex with their wife while she is unconscious — or he, the only other way around, if that’s possible, I don’t know. But a prosecutor could then charge that spouse with rape.”
Anonymous “Biblical Gender Roles” blogger, 2015
Argued that Christian husbands needn’t “pay for the milk when they own the cow.” Claimed in a follow-up post he wasn’t advocating for men to “force themselves physically” on their wives, only that they could certainly have sex with them even if they weren’t in the mood. Whatever one would call that. And just in case we weren’t clear, followed it up in July of this year: “[I]t is IMPOSSIBLE Biblically speaking for a man to rape his wife. Abuse? Yes. Rape? No.”
And Now a Brief Interlude to Hear From Some Ladies
Phyllis Schlafly, 2008 and also constantly
At last, a woman coming out hard for Team Rape! Conservative icon Phyllis Schlafly argued baldly and repeatedly that getting married is equal to perpetual consent to sex:
“By getting married, the woman has consented to sex, and I don’t think you can call it rape.”
Real Housewife Melissa Gorga, 2013
In a deeply depressing book written with husband Joe:
In the beginning, Joe wanted to have sex every single day, at least once, if not twice or three times…If I didn’t give it to him once a day, he’d get upset.
I can do something that pisses him off on a Monday, but if we had sex on Sunday night, it blows over more easily. But if we haven’t done it for two days and I give him attitude? It could be a huge fight.
Hamid Karzai, then-president of Afghanistan, 2009
Signed a bill into law several restricting the rights of Shia women, including their rights to refuse to have sex with their husbands. Refused to answer questions about the marital rape portion of the bill, and told reporters other portions of the law—like a piece that restricted women’s rights to leave the house—had been “misintepreted” by the foreign press. The law was quietly reversed later that year.
Sheikh Maulana Abu Sayeed, president of the Islamic Sharia Council in Britain, 2010
A man who oversees sharia courts has the same opinions as many American politicians who are terrified of sharia law:
“Clearly there cannot be any rape within the marriage. Maybe aggression, maybe indecent activity... Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable.”
India and Malaysia, present day
Marital rape is fully legal in both countries: the Malaysian penal code says rape laws don’t apply to “legally married couples,” while a 2013 law in India reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Idea: Malaysian or Indian women wishing to not be raped by their husbands can come to one of the 42 U.S. states where it’s completely and unquestionably illegal. In return, we will give you Donald Trump and his lawyer. No, really. Please. Take them.