Key terms: criminal law, reserved powers, policy diffusion, due process
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By day, Minnesota state Rep. Zach Stephenson is a prosecutor. Yet it came as a surprise to him when a constituent said his daughter had been raped by her husband and that a provision in the state’s law prevented him from being prosecuted.
"I don’t normally handle sex crimes, but I thought no way in 2019 in Minnesota do we have a law on the books that makes that OK," says the Democratic lawmaker. "I went back to my office and read through the law and sure enough there is an exception for drugging or having sex with someone mentally incapacitated if they’re married."
Twelve states -- Connecticut, Idaho, Iowa, Michigan, Minnesota, Mississippi, Nevada, Ohio, Oklahoma, Rhode Island, South Carolina and Virginia -- have a loophole that legalizes marital rape. In Nevada, being married to the victim is enough to protect someone from prosecution. In Virginia, a husband can avoid criminal charges if he agrees to therapy. In South Carolina, a married victim only has 30 days to report the rape and has to prove threat of physical violence.
The most recent state to close a marital rape loophole was Maryland, in 2017, where the law had required victims to prove there was use of force.
Since then, lawmakers in Ohio have tried and failed to eliminate the state's requirement for proof of threat of force or violence if a couple is married or living together. Ohio state Rep. Kristin Boggs, a Democrat, believed the state had the votes to pass it last year, but the bill didn't make it past committee. Boggs says she intends to refile the bill this year. She'll have to overcome the critics who argue that closing marital rape loopholes would open the door to false allegations during contentious divorce settlements.
"The problems of proof was one concern. This happens between husband and wife in private -- it’s one person’s word against another," John Murphy of the Ohio Prosecuting Attorneys Association, which has previously opposed the bill, told the Dayton Daily News in 2017.
