Justice

Memo To Donald Trump: Here’s What The Law Actually Says About Raping Your Spouse

CREDIT: AP Photo/Luis Ribeiro

Donald Trump may want to use some of his multi-billion dollar fortune to hire a better lawyer, as The Donald’s special counsel appears to have a very dated understanding of what constitutes rape. “You cannot rape your spouse,” Trump lieutenant Michael Cohen told the Daily Beast for an article published Monday, “and there’s very clear case law.”

The Daily Beast article centered around an explosive, if somewhat dated, allegation against the Republican presidential frontrunner: Trump allegedly raped his former wife, Ivana. Cohen, who is an attorney, reacted to the allegation with Trump-like bombast. “You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet,” Cohen told the Daily Beast. He also advised them to “tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting.”

These were bold words from a man who appears to know fairly little about the laws governing the crime of rape. Cohen also claimed that “by the very definition, you can’t rape your spouse.” He’s wrong. Marital rape has been a crime in all 50 states since July 5, 1993. The highest court in New York, where Donald and Ivana lived, held that a marital exemption to the crime of rape is unconstitutional in 1984, five years before Donald allegedly raped Ivana.

The Daily Beast does not identify the state where this alleged rape occurred (although it implies that it occurred in New York), so it is possible that the alleged assault occurred while the couple was visiting one of the handful of states that still did not criminalize marital rape in 1989. Nevertheless, Cohen’s categorical statement that “you can’t rape your spouse” does not accurately describe current law in any of the 50 states.

The rape allegation appeared in a 22 year-old book. According to Harry Hurt III, the author of Lost Tycoon: The Many Lives of Donald J. Trump, Donald became angry at Ivana because he was unsatisfied with a cosmetic surgery performed on him by a plastic surgeon recommended by his then-wife. As the Daily Beast recounts the allegations against Donald Trump, Donald “began to pull out fistfuls of hair from her scalp” before he “tore off her clothes and unzipped his pants” and then “jams his penis inside her for the first time in more than sixteen months.”

Ivana reportedly told confidantes that Donald “raped me.” Before the book was published, however, Donald’s lawyers provided a statement to the publisher which walked back this allegation, though the statement still said that Ivana “felt violated” by Donald when the alleged incident occurred. Ivana also defended Donald shortly after the rape allegation resurfaced in the Daily Beast article, saying that “Donald and I are the best of friends and together have raised three children that we love and are very proud of. I have nothing but fondness for Donald and wish him the best of luck on his campaign.”

Cohen’s claim that sex between spouses cannot legally be rape was once true, although it is rooted in a definition of marriage that our society abandoned decades ago. Under the English common law, which still shapes much of American law, a woman became little more than her husband’s property when she said “I do” at the altar. As Sir William Blackstone wrote in a widely cited explanation of the common law rule of marriage, “[t]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.”

Under this traditional definition of marriage, a wife’s financial identity was subsumed into her husband’s. Though she could retain title over real estate, such land was managed and controlled by her husband. The husband actually gained legal ownership of his wife’s remaining property.

Significantly, the common law also held wives to be sexually subservient to their husbands. A husband “cannot be guilty of a rape committed by himself upon his lawful wife,” Sir Matthew Hale wrote in a 1736 treatise on the common law. “[B]y their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” Hale added, and this consent was something “she cannot retract.”

This vision of the wife as a kind of sexual property continued until surprisingly recently in the United States. The 1962 draft of the Model Penal Code, a proposed set of criminal laws drafted by legal scholars seeking to encourage uniform laws throughout the states, provided that the crime of rape could only occur when a “male . . . has sexual intercourse with a female not his wife.” Nebraska, the first state to abolish the marital rape exemption, did not do so until 1976.

After Nebraska took this step, however, the remaining states followed fairly quickly. In 1993, North Carolina became the last state to repeal the old rule holding that a husband could not rape their wife.

Admittedly, some states still treat spouse-on-spouse rape differently than other forms of rape. Ohio law, for example, criminalizes rape when the alleged rapist “impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance,” or when the alleged victim’s “ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.” These two categories of rape do not apply, however, to sex between cohabiting spouses. A person may still be convicted of raping their spouse, however, “when the offender purposely compels the other person to submit by force or threat of force.”

South Carolina’s law provides even broader legal immunities to people who rape their spouse, requiring “’the threat of use of a weapon’” and/or ‘physical violence of a high and aggravated nature’ in order to prosecute what it terms ‘spousal sexual battery.’” According to a news article from last month, eight states still have laws that treat marital rape differently than other forms of rape.

In any event, it is simply false to state that “you can’t rape your spouse,” as Cohen suggests.

UPDATE JUL 28, 2015 11:24 AM

Both Donald Trump and Cohen have now repudiated Cohen's previous statement that spousal rape is not rape. Cohen told CNN that "[i]n my moment of shock and anger, I made an inarticulate comment – which I do not believe — and which I apologize for entirely." A different spokesperson for Trump, meanwhile, says that “Mr. Trump didn’t know of [Cohen's] comments but disagrees with them."

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