The 17th-century English jurist, Sir Matthew Hale (1609–1676), stated the position of the common law in The History of the Pleas of the Crown (posthumously, 1736) that a "husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract".
[4] This would continue to be accepted as a statement of the law in England and Wales until it was overturned by the House of Lords in the case of R v R in 1991,[5] where it was described as an anachronistic and offensive legal fiction.
The exemption is also found in the 1962 Model Penal Code, which stated that "A male who has sexual intercourse with a female not his wife is guilty of rape if: ...".
A bill introduced by Senator Grace Mickelson quietly struck the spousal exemption from state law.
The state modernized its law to use the term "sexual assault" rather than "rape", and to be gender neutral, rather than to assume a male perpetrator and female victim.
[2] Some laws of the 1970s required the husband and wife to no longer be living together for marital rape charges to be brought.
The law stated that a person could be guilty of the rape of a spouse at a time they are living together only if that person either "was armed with a weapon or any article used or fashioned in a manner to lead the alleged victim to reasonably believe it to be a weapon" or "caused serious bodily injury to the alleged victim".
[25] Until July 2019, in Minnesota sexual violence occurring between spouses at the time they cohabit or between unmarried partners could be prosecuted only if there was force or threat thereof, due to exemptions created by Article 609.349 'Voluntary relationships'[26] which stipulated that certain sexual offenses do not apply to spouses (unless they are separated), and neither do they apply to unmarried cohabitants.
[30] However, Section 261 indicated that this only applied if the victim was "incapable [of giving legal consent] because of a mental disorder or developmental or physical disability".
[31] Since January 1, 2019, Penal Code Section 261.6 defines "consent" as "positive cooperation in act or attitude pursuant to an exercise of free will.
[31] October 7, 2021, Governor Gavin Newsom signed 2021 Assembly Bill 1171 into law, eliminating section 262 of the California Penal Code.
"[39] In Mississippi, a person can be convicted of sexual battery of a spouse when they are living together only if he engages in "forcible penetration against the victim's will".
The whole article 2907.03 Sexual battery, that deals with various forms of coercion (for instance it states in subsection in A (1) that "The offender [commits a crime when he] knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution") does not apply at all to married people.
("Mentally incapacitated" is defined by legislation as: "a person who is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or who is mentally unable to communicate unwillingness to engage in the act".
[49]) South Carolina's statute on "Assault and Criminal Sexual Conduct" (Title 16, Chapter 3, Article 7 of the SC Code of Laws) lays out distinctively different definitions and penalties between rape by a spouse and by other parties.
South Carolina Code 16-3-615, titled Spousal sexual battery, reads: Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.
Under certain circumstances, if the victim and the attorney for the Commonwealth agree, the perpetrator can undergo a therapy program, which if completed successfully, replaces any punishment.
This can happen if "the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness".
Delaware, New Jersey, Pennsylvania, Minnesota, Rhode Island, and New York have enacted legislation to ban all marriage for minors under the age of 18, without exceptions.
Iowa is also one of 10 states, and the District of Columbia, which recognizes common law marriage, though it does also require, "substantial evidence of a present intent and agreement to be married, continuous cohabitation, and a public declaration that the parties are husband and wife.
The man, who was of Mexican origin, argued that according to the norms as they exist in his culture, their relationship was "sort of like a trial marriage."
The court rejected this argument, ruling that the exemption could be used only if the couple "objectively cohabited in the status of husband and wife, whether common law or otherwise," not if they merely believed they did.