Husbands Who Drug and Rape Their Wives: The Injustice of the Marital Exemption in Ohio’s Sexual Offenses

This article argues that Ohio\u27s marital rape exemption fails to vindicate the sexual autonomy and physical integrity of all persons in the state to be free from non-consensual sexual conduct. This protection from unwanted, non-consensual sexual violation should be afforded to Ohioans regardless of the victim\u27s marital relationship to the perpetrator. Furthermore, the state\u27s sexual offense provisions are plagued with inconsistencies and illogical distinctions with respect to the marital immunity. Ohio\u27s partially abolished marital exemption cannot be justified under any coherent theory of justice, appears to survive merely due to inertia, and certainly does not serve the best interests of Ohio residents. The Ohio General Assembly should finish the legislative reform it started in 1975 and most recently revisited in 1986 by eliminating the marital exemption in its entirety from the state\u27s rape statute and other sexual offenses. Part II of this Article summarizes Ohio\u27s four major sexual offense provisions - the rape, sexual battery, gross sexual imposition, and sexual imposition statutes. Without Ohio\u27s marital exemption, each of these criminal statutes contains one or more subsections that prosecutors might employ to charge an individual who drugs and then sexually assaults his marital partner with a sexual offense. Part III explores the contours of the current marital exemption and its three separate exceptions: (1) in the definition of spouse used in all four major sexual offenses, (2) in the circumstance of living separate and apart under the rape statute, and (3) in the forcible rape subsection of the rape statute. Part IV considers whether drugging and sexually assaulting one\u27s spouse could constitute a type of forcible rape such that the marital immunity would not apply. Part V critiques the present status of a partial lifting of the marital immunity and argues for its complete abolition. The simple fact that current law permits a person to drug and rape his spouse with impunity underscores the need for legislative reform. Part VI proposes three steps to effectively abolish the marital exemption from Ohio\u27s sexual offense statutes. First, the Ohio General Assembly should eliminate all references to spouse in the four sexual offenses and from the definitional provision, making it clear that all sexual offenses can be committed inside or outside of marriage. Second, the legislature should enact a provision that unequivocally states that any prior marital or sexual relationship existing between the perpetrator and victim is legally irrelevant to the question of whether a sexual offense occurred or whether the victim consented on the occasion in question. Finally, courts should instruct juries in marital rape cases that a marriage or prior sexual relationship between the victim and the defendant has no bearing on criminal liability. Through this three-step process, Ohio\u27s rape and other sexual offense provisions can afford the maximum protection to residents from unwanted, non-consensual sexual exploitation without regard to marital status or prior relationship to the criminal offender