Let me begin by telling you what you already know. Rape is a horrible crime, and it has been unlawful in every society for thousands of years. The most intimate act of love is a gift. It cannot be demanded or taken by force. And everyone agrees that a person’s body is her or his own, that no-one can violate another person’s body. So the law has always criminalized and punished rape, with one shocking exception: marital rape. Until very recently, husbands in the U.S. have been legally free to rape their wives. That is, a husband could physically force his wife to have sex against her will. This is called spousal immunity.
The reasons for spousal immunity now sound ridiculous. One reason was that a wife was considered the property of the husband, allowing him to do whatever he wished with his “property.” The other major justification for marital rape was the idea that by agreeing to marriage, a wife gave consent to sex on demand; even when she actually said “no,” even when she was violently assaulted. Between 1979 and 1993, all 50 states changed their laws concerning marital rape. I wish I could report that every state simply abolished spousal immunity, and called a rape a rape, regardless of who the victim is. But not all states abolished marital rape. Some states still allow marital rape. You’re living in one of those states: South Carolina.
Impossible you say? Let me give you a brief tour of our rape laws. To start with, we divide rape into three “degrees,” depending mainly on the level of violence used. First degree rape involves a high level of violence, called “aggravated” force — the kind of violence that could cause serious injury or death, including use of or threat with a deadly weapon. This carries a 30-year maximum sentence. Second degree rape is threatening to use aggravated force, which carries a maximum 20-year sentence. Finally, third degree rape is (non-aggravated) force or threat of force used to accomplish sex against the will of the victim. Third degree rape carries a maximum sentence of 10 years.
Okay, so far so good — nothing illogical here. But our legislature apparently thought a little marital rape was still a good idea. They declared that when husbands rape their wives, it is only punishable if the level of violence rises to first or second degree rape. What about third degree rape? This is still rape: a forceful, sexual assault against the will of the victim. Third degree rape is not a crime when spouses are involved. Let me repeat that. Under current South Carolina law, a husband’s third degree rape of his wife is not rape.
I urge you to take a look at the laws for yourself. The official website for our statutes is www.scstatehouse.gov and you’ll have to look up the relevant statute numbers. The ones I have been describing are: 16-3-615; and 16-3-651 through 16-3-654; and 16-3-658. There is of course more detail in these statutes than I had time to cover.
But the inescapable truth is that South Carolina husbands are free to engage in lawful third degree rape of their wives. Why? If this is the law of our land, is it any wonder our state has such a terrible problem with domestic violence? How can we, the people who elect the lawmakers, stand for this? There are many social and political issues that divide us as a community and a state. But I cannot imagine that anyone believes our law — the supposed ideal of our behavior — should allow a husband to rape his wife. Legislators, where have you been? Voters, what say you?
The writer lives in Myrtle Beach.