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On Monday evening, the Daily Beast reported that mogul and GOP presidential frontrunner Donald Trump allegedly raped his former wife, Ivana Trump.
Ivana Trump’s claim from 1989 — which she later dismissed — came in a deposition that was part of their divorce case in the early ’90s, and was detailed in the 1993 book Lost Tycoon: The Many Lives of Donald J. Trump, by reporter Harry Hurt III. The deposition detailed that she had been raped by her husband while he was in a fit of rage after a painful surgical procedure to reduce the appearance of his baldness — by a plastic surgeon that she recommended.
When asked for comment on this incident by the Daily Beast, and after vehemently disputing the claim and threatening the reporter, the special counsel at the Trump Organization, Michael Cohen, said, “And, of course, understand that by the very definition, you can’t rape your spouse. It is true. You cannot rape your spouse. And there’s very clear case law.”
Donald Trump and his ex-wife Ivana Trump in 1991. (Photo: AP/Luis Rubeiro)
On Tuesday, Cohen released a statement to CNN apologizing for his “inarticulate comment — which I do not believe.” But he shed light on a form of abuse that’s rarely talked about, and on a misperception that persists in the U.S. even today: that marital rape is not a crime.
The legal history of marital rape
When asked by Yahoo Health to define “marital rape,” Scott Berkowitz, the president and founder of the Rape, Abuse, and Incest National Network, simply replies, “It’s illegal.”
There was a long period during which many states had exceptions that decriminalized marital rape, but by 1993 sexual assault on a spouse had become a crime in all 50 states. Until 2005, Tennessee law stipulated that people could only be found guilty of rape of a spouse with whom they lived if the perpetrator was armed or caused serious bodily injury to the victim.
While Washington state lifted its bans on spouses being prosecuted for first- and second-degree rape in 1983, its ban on prosecution for third-degree rape only occurred in 2013. According to Washington state law, third-degree rape is classified as sexual intercourse that occurs with the perpetrator without the consent of the victim or that occurs with the perpetrator despite the victim’s lack of consent as expressed through words or conduct.
There are still seven states where there is a marital exception to certain sex crimes. For example, in Ohio, a rape that occurs in a marriage when the spouses are living together can only be charged under a specific subsection of the state’s rape laws, whereas a rape where the perpetrator who is not married to the victim can be charged with various sexual assault crimes. Connecticut and Oklahoma have similar statutes, whereas in Maryland a prosecution in cases of marital rape can only occur if the accused used force or threatened to use force in engaging in sexual intercourse without the consent of the spouse. As a practical measure a prosecutor may still prosecute marital rape nationwide, however, utilizing various sexual-assault statutes.
These exceptions reflect a slow-moving change in societal perception regarding what acts specifically constitute rape. As noted in the searing New York magazine cover story featuring 35 of the women who have come forward with allegations of rape and sexual assault against Bill Cosby:
In the ’60s, when the first alleged assault by Cosby occurred, rape was considered to be something violent committed by a stranger; acquaintance rape didn’t register as such, even for the women experiencing it. A few of Cosby’s accusers claim that he molested or raped them multiple times; one remained in his orbit, in and out of a drugged state, for years.
In the ’70s and ’80s, campus movements like Take Back the Night and No Means No helped raise awareness of the reality that 80 to 90 percent of victims know their attacker. Still, the culture of silence and shame lingered, especially when the men accused had any kind of status.
Importantly in Trump’s case, there is no confusion or exceptions regarding marital rape in the state of New York, where the alleged incident involving Trump and his ex-wife occurred.
And yet, despite the current legal definitions, marital rape can still be difficult to identify and prosecute.
A murky world of prosecution
“For one thing,” says Berkowitz, “a spouse is less likely to report an event [of marital rape] to the police. And it can be harder to prove [marital rape] because there is a natural intimacy between partners where things are often less explicit than they would be between non-spouses.
“Some prosecutors are reluctant to bring cases [of marital rape] to trial because of the difficulty of getting convictions, but that doesn’t change the underlying law.”
How often does marital rape happen?
Anywhere from 20 to 70 percent of battered women report having been sexually assaulted by their partners at least once. Current, specific numbers are hard to come by, but it is estimated that, as of 2001, over 7 million women have been raped by their intimate partners or spouses in the United States.
According to a fact sheet published by Patricia Mahoney of the Medical University of South Carolina, data from 1990 showed 10 to 14 percent of married American women have experienced at least one forced sexual assault by a husband or ex-husband. Additional data points to the fact that one-third to three-quarters of women who report sexual assault name their husband or intimate partner as the assailant.
A study of Canadian women showed that 30 percent of adult women who had been sexually assaulted were attacked by their intimate partner.
Furthermore, a 1996 study found that college men believed marital rape to be less serious than rape perpetrated by a stranger and that only 50 percent of the men studied believed that it was even possible for a husband to rape his wife.
The frequency with which marital rape occurs does not, however, make it any easier for its victims.
The psychology of marital rape
“There is often, when a family member [or someone else close to the victims] commits a sexual assault — you see this when a parent or stepparent sexually assaults a child as well — a reluctance within the family to call it rape. There is embarrassment and a fear of breaking up the family by coming forward with an allegation. There is great internal family social pressure” faced by victims of marital rape and other forms of intimate-partner violence, notes Berkowitz.
“The people who rape a spouse — you see a lot of overlap with people who commit other crimes of physical violence against a spouse,” Berkowitz continues. And while there are a host of motivations behind various forms of intimate-partner violence, marital rape is “ultimately an expression of anger and of a feeling of entitlement. A feeling that there is nothing anyone can do to stop them,” says Berkowitz regarding the psychological factors that lead to marital rape.
Like with other victims of sexual assault, those who have survived marital rape and intimate-partner violence are more prone to depression, PTSD, and drug and alcohol abuse. But when sexual assault occurs within a family, there are additional long-term effects.
With marital rape specifically, Berkowitz says, “It calls into question your relationship with the person in the world you thought you were closest to. It makes you reassess everything in your family life.”
Marital rape is a crime
The biggest misconception about marital rape is that it is not a crime. “That a spouse has an unlimited right to demand sex from their partner” is still a widely held belief, says Berkowitz, noting that since marital rape only became illegal nationwide two decades ago, “there is still some residual misunderstanding” that this form of sexual assault is legal.
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