Washington is one of the few states lacking laws that expressly allow one spouse to press criminal charges against the other for marital rape in all circumstances.
Our Tacoma rape defense lawyers know there are very good reasons for this. Yet, the law may soon change anyway.
As it now stands, a marriage license is an absolute defense against allegations of sexual assault from one spouse against the other, in all except the most serious cases. Up until the 1970s, this was where most states stood. But then, states began to remove that preclusion.
In the early 1980s, Washington State did remove the marital exemption as it related to the most serious first and second-degree rape charges, but lesser sexual assaults were still considered off the table.
Advocates seeking to change the law say it is outdated and sexist. But the fact is, allegations of spousal rape are often false. And even though these claims tend to have limited success in criminal court, they continue to be lodged, often out of anger, jealousy, sadness, revenge, mental illness - or as part of a nasty divorce or child-custody case.
The burden of proof for marital rape is generally considered greater than cases where the parties don't know each other or only knew each other casually.
In cases where the accuser and defendant don't know one another, using DNA evidence to prove a sexual encounter happened at all may be enough to seal the prosecution's case. But in cases of alleged marital rape, we're talking about two people who not only know each other, but have known each other intimately and have publicly and legally pledged to live their lives together. Proving that a sexual encounter occurred isn't enough. Prosecutors have to show that the alleged victim did not consent and that the act was carried out through some kind of force, violence, coercion, threat or while the accuser was unconscious. This is a tall order for a prosecutor in any rape case, but the lines are blurred in instances of spousal rape accusations.
To begin, one spouse may be sending the other mixed signals. And if the couple is amorously adventurous, there may be bruises or marks - but they too may be a result consensual sex. Many couples also have an understanding where when one is intoxicated, he or she doesn't mind being engaged in sex with his or her spouse. Then you have couples going through a divorce or thinking of splitting. In those cases, there may be ample motive by the accuser to paint the defendant in a bad light - particularly if the two are embroiled in a custody battle.
The fact that these cases are so complex and nuanced are a big part of the reason why removing the marital rape exception in Washington state hasn't been a top priority.
But now, legislators are trying to pass House Bill 1108.
Up until now, many rape cases involving spouses didn't rise to the level of first or second-degree rape, so prosecutors instead tended to file misdemeanor assault charges, punishable by up to one year in jail. But if this bill passes, the state in these same cases would be able to press forward with a third-degree rape charge - a Class C felony punishable by up to five years in prison and a $10,000 fine.
Let's consider too that a sleeping person is by law considered to be physically helpless. So in theory, if a husband sexually touches his wife while she is asleep, he could potentially be charged with a Class B felony, punishable by up to 10 years in prison and a $20,000 fine!
If you have been arrested or accused of a sex crime in Tacoma, contact Timothy L. Healy at 888-312-3093 - a 24-hour hotline.
Washington Legislature proposal would remove marital exception for rape, Jan. 29, 2013, Associated Press
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Hundreds of Rape Cases Reviewed Amid Botched Lab Results, Jan. 15, 2013, Tacoma Rape Defense Lawyer Blog