Bill to criminalize spousal rape in Ohio has no opponents, so why can’t it pass?
The Ohio Statehouse. Photo by Jake Zuckerman, Ohio Capital Journal.
The following article was originally published on News5Cleveland.com and is published in the Ohio Capital Journal under a content-sharing agreement. Unlike other OCJ articles, it is not available for free republication by other news outlets as it is owned by WEWS in Cleveland.
About a third of sexual assaults are committed by a current or a former partner, according to the Ohio Domestic Violence Network. For many of these victims — they are unable to do anything about it. A bipartisan bill could fix that, but it’s been getting shelved for at least eight years.
Some sex offenses aren’t actually illegal if the victim’s married to the perpetrator, according to section 2907.02 of the state’s Revised Code.
“No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies…” the law states.
Ohio is one of 12 remaining states that haven’t amended the marital or spousal rape exemption law.
“We can remove ourselves from that list,” Representative Laura Lanese said. “It’s a black eye on the state of Ohio.”
Lawmakers say having the spousal rape exemption law is a stain on Ohio’s history and potential future.
Reps. Lanese (R-Grove City) and Kristin Boggs (D-Columbus) have been working for years to eliminate a loophole in state law. Now, they have introduced House Bill 121, which would close that gap.
Currently, forcible and violent rape is illegal for everyone. However, purposely impairing someone’s mental state or waiting until they are unconscious to assault or commit other sex crimes against them is legal for married couples.
This is a situation where a victim is unable, either because they have been drugged or drunk to the point of unconsciousness or any other incapacitation, that they are forced to have sex or their body is used for other sexual assaults.
“If a woman is in a bar and gets roofied and is drugged and is then assaulted, raped by persecutor, that is a crime,” Lanese said. “Now if that same gentleman happens to be her spouse, it is not a crime.”
It’s only because of the ring on a finger that there is a distinction in the law.
“I think this is a holdover from history,” Mary O’Doherty, executive director for the Ohio Domestic Violence Network, said. “Many, many, many, many, many years ago, women were considered marital property.”
It would clear a pretty important barrier away, the advocate said. There is a stigma of being any kind of victim or survivor of sexual abuse, but being a victim of marital sexual assault can be especially negative — because the current law invalidates the survivor’s abuse by telling them it isn’t a crime, she added.
“I think sexual assault inside a marriage is arguably the worst kind of domestic violence there is,” she said.
HB 121 focuses on two things: eliminating exceptions to certain sex offenses that currently apply if the victim is the spouse of the offender and expanding the proceedings in which a person may testify against the person’s spouse to include prosecutions for any of the sex offenses modified by the bill.
The exceptions to the sex offenses that currently apply are rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition and sexual imposition.
“It’s atrocious,” O’Doherty said. “You got to give a lot of credit to the legislators who have been pushing this.”
Before HB 121, similar legislation was introduced in the 131st General Assembly but didn’t go anywhere. It was introduced in the 132nd and passed through committee with a 12-1 bipartisan vote. It never moved forward, again. And then again, in the 133rd.
There is not one opponent to HB 121 that is speaking openly against it, but it has remained stalled in an Ohio House committee since its reintroduction in 2021.
In 2015, The Prosecuting Attorneys Association was against it. Lanese said their argument didn’t hold any weight.
“There’s this archaic view that because women can potentially lie about this, that this will be used in a divorce proceeding and that you against men in a custody battle or for other reasons — and originally, that’s what the Prosecuting Attorneys Association had said, and they were opponents of the bill when we did it in the 132nd General Assembly,” she said. “I don’t see the floodgates opening, where women are going to be using this in divorce cases.
“Women can make up any lie in a divorce case, and yet we still have crimes like ‘they were hitting the children or something else. A lie is a lie, and that’s why we have judges and juries to be able to figure that out, whether or not the person putting forth the argument is telling the truth or not.”
However, the Ohio Prosecuting Attorneys Association is now a proponent. Their spokesperson even testified in favor of the bill in 2021.
“They realize the error of their ways and can appreciate what we’re trying to get accomplished here,” the Rep. said. You don’t see this with any other type of crime — that just because somebody can lie about it, you don’t make it a crime.”
Even without any opponents and a plethora of support, this bill will not move.
“I think there could be a few reasons why,” Emily Gemar with the Ohio Alliance to End Sexual Violence (OAESV) said. “I think they all probably stem from the same place.”
That place is a dominant culture that doesn’t see that all forms of sexual violence are crimes, she said.
“There are a lot of assumptions that stem from those myths about, ‘what counts as an act of sexual violence,’ ‘who is an acceptable victim,’ ‘who qualifies as a victim?'” she added. “Different things that we see in our culture impact us and what we think about these issues.”
Sometimes an assumption that what happens within a marriage should stay in a marriage or what happens within a family should stay within a family, she said. There are also assumptions that once someone is married, they provide an ongoing perpetual state of consent for any sexual activity — but consent is an ongoing process, she added.
“I think we still retain some of those kind of patriarchal beliefs and structures,” she said, referencing the point that wives were subordinate to husbands. “I think that that can be hard for people to wrap their head around at times, but I will say that that’s not necessarily an excuse.
“I think it stems from these myths about sexual assault and who counts as a victim, what counts as violence or harassment and whether or not it’s ‘quote unquote’ serious enough.”
Carving out an exception for spouses to do what is otherwise considered rape is barbaric, Rep. Boggs said.
“Saying “I do”, should not forfeit ones’ ability to access justice under the law,” the Democratic rep. said. “The goal of our bill is to eliminate those words, “not the spouse of the offender,” so that married victims have the same protections from sexual assault as unmarried ones.
“The legal status of your relationship should never determine whether such abhorrent conduct as rape is criminal or not”
The message that the assault that happened is not a crime can create an insurmountable obstacle to reporting the crime or even seeking help outside of the criminal legal system, Rosa Beltré, executive director for OAESV, said in her testimony during the last hearing. “The current exemptions in the law for certain sexual assaults and rapes perpetrated by a spouse preclude those offenses from qualifying as sexually oriented offenses.”
By not registering as that specific type of crime, married survivors do not qualify for a Sexually Oriented Offense Protection Order when pursuing protection, the organization said.
In regards to the language about testifying, the new bill would not substantively change the application of Ohio’s spousal privilege rules, according to the Gemar. Victims of sex offenses are already permitted to testify against the perpetrating spouse. However, there are no negative effects of modifying the language in the statute, a report by the organization found.
“I think that with enough pressure, we can get this logjam broken and get it moving before the end of the General Assembly and we have to introduce it yet again,” Lanese said. “It’s time for us to get rid of it.”
Still, after nearly a year since the bill’s last hearing, the lawmakers have hope to change the lives of survivors.
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