It’s the year 2022, and somehow we are still equivocating over when sexual assault and/or abuse is acceptable.
Monongalia County Prosecutor Perri Jo DeChristopher addressed legislators Monday and asked them to repeal the exemption that allows spouses to get away with sexually abusing their partner.
There’s a subtle but important distinction in West Virginia law between the criminal charge of sexual assault and sexual abuse. “Sexual assault,” in the legal sense, involves intercourse or penetration while “sexual abuse” involves only sexual contact. In West Virginia law, “sexual contact” is defined as “any intentional touching, either directly or through clothing, of the breasts, buttocks, anus or any part of the sex organs of another person, or intentional touching of any part of another person’s body by the actor’s sex organs, where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party” (emphasis added).
Because of that little phrase in the “sexual contact” definition, a spouse can molest their partner however and whenever they’d like, regardless of consent, so long as there is no penetration involved. Spouses are only criminally liable for the assault if it escalates to intercourse.
Repealing that language should be a no-brainer. And yet …
Sen. Robert Karnes, R-Randolph, spoke against the repeal, saying: “You want to make it a crime to do inside of a marriage what would be a crime outside of a marriage. … [I]t’s part of the implied contract of marriage that those things are going to be OK.”
Translation: Women (because that’s who lawmakers likely had in mind when the law was written) are their husbands’ property to be used however and whenever her husband sees fit.
Such marital exemptions rely, as Karnes implied, on the idea of “ongoing consent.” But just as in non-marital sexual abuse and assault cases, it should never be assumed — especially in a court of law — that giving consent before automatically means that consent is given now.
In addition to making it clear he doesn’t believe in spousal rape, Karnes also raised concerns about women making false allegations during divorce proceedings as a reason to keep the exemption in place. However, according to reputable studies, the occurrence of false rape or sexual abuse allegations is about 2% to 10% of cases. (Compare that to the approximately 63% of sexual assault cases that are never reported, according to the National Sexual Violence Resource Center.)
As DeChristopher tried to make clear, there is a big difference between making an accusation of spousal sexual abuse in a civil court and doing the same in a criminal court. For there to be criminal charges, an investigation must produce enough evidence for an arrest. As anyone who watched the Johnny Depp/Amber Heard trial knows, there doesn’t need to be a criminal case for such claims to be explored in a civil court. Removing the spousal exemption has no bearing on what might happen in a divorce proceeding, but it may allow a victim to get justice.
Sexual assault or abuse is wrong when a stranger does it — and it’s even more so when done by a spouse. Because while “ongoing consent” to sexual acts is not part of a marriage bond, trust between partners is, and there is no greater violation of that trust.
The Legislature had the opportunity to address this issue in 2021 with SB 498 and chose not to take it up. During the next regular session, legislators should prioritize giving married victims equal protection under the law.
