Police, prosecutors applaud end of marriage exemption for rape

SEATTLE -- Until last week, in Washington state you could rape someone without the fear of being convicted of rape, or even charged with it, as long as the victim was your spouse. It's a fact that shocks a lot of people.

"There was a sort of horror…that that could possibly be allowed," State Rep. Roger Goodman said during a House Public Safety Committee hearing earlier this year. "That we would allow rape and someone not being able to be charged or convicted of it."

Goodman was the primary sponsor a bill signed by Gov. Jay Inslee May 1, officially ending the marital exemption for third-degree rape and indecent liberties in Washington state.

Third-degree rape occurs when the victim does not consent to sexual intercourse, either through words or conduct, and when there is a threat to the property rights of the victim. Indecent liberties occurs when someone forces the victim into sexual contact through a position of authority or when the person is incapable of consent for mental or physical reasons. Both are felonies.

With the signing of the bill, Washington joined 42 other states that no longer recognize a spousal exemption in third-degree rape cases. Washington removed the exemption for first and second-degree rape 30 years ago but kept it in the case of third-degree rape as part of a political compromise.

"Most everyone I've talked to in  my life that aren't prosecutors or defense attorneys they had no idea the law said this," King County Senior Deputy Prosecutor David Martin said. "They're surprised to learn it did."

Martin, who supervises the King County Prosecutor's Domestic Violence Unit, said the old law hamstrung law-enforcement agencies and prosecutors. Police couldn't even investigate such cases; the first and last question was, "Are you married?"

Instead, prosecutors had to get creative in finding ways to prosecute offenders for a lesser charge, such as fourth-degree assault, a misdemeanor punishable by up to a year in jail and a $5,000 fine. In comparison, third-degree rape is punishable by up to 10 years in prison and a $20,000 fine.

During the initial hearing for the bill, Martin told of one case in which a municipal court judge was upset to learn the victim could not take her case before a jury as a victim of rape.

"To not even have the option to have a legal response in the situation really troubled a lot of people in the criminal justice system for a long time," Martin said.

The new law is not expected to dramatically increase the number of third-degree rape cases heard every year. According to the bill, prosecutors expect fewer than 50 statewide. Martin said there were only 39 third-degree rape convictions last year total.

But, he said that doesn't mean there isn't an important principal involved. Rape does happen in marriages, and that's unacceptable, he said.

"That's not a whole lot of cases but in the context of a marriage they're really important ones," he said.

During the Jan. 29 hearing, Andrea Piper-Wentland, executive director of the Washington Coalition of Sexual Assault Programs, told legislators spousal rape is not less harmful than other rape. In fact, it can have longer-lasting and more traumatic impacts because the victim has to live with the rapist, not just the memory of the attack.

"A marital relationship should not be a defense to sexually assault anyone," she said.

It seems most legislators and many in Washington's judicial system agreed.

The bill was supported by the Washington Association of Sheriffs and Police Chiefs, as well as criminal defense lawyers (It's not often prosecutors and defense attorneys agree on changes like this, Martin said). Only one legislator in the House and Senate voted against the bill.

"I think there was universal support for removing a really archaic part of Washington state law," Martin said.