Who would have thought, in the year 2021, that a man who rapes his wife in California is guilty of a lesser crime than a man who rapes someone to whom he’s not married?
Who would have thought that a man convicted of “spousal rape” in this state does not face a mandatory three-, six- or eight-year prison term and may instead receive probation?
Or that he may not have to register as a sex offender, as every other convicted rapist must?
Or that if his wife is physically or mentally disabled, he may not have committed a crime at all?
“It’s crazy,” said Stanford University law professor Michele Dauber, who in 2018 launched a successful recall campaign against Santa Clara Superior Court Judge Aaron Persky after he gave a light sentence to Stanford swimmer Brock Turner for sexually assaulting an unconscious woman during an on-campus frat party.
“It’s a relic of 17th century English common law, when women did not have the right to refuse to have sex with their husbands,” said Dauber. “It’s a relic from the time they used to burn women at the stake as witches.”
It is increasingly rare for states to carve out exceptions to rape laws when they involve married partners. California — yes, progressive, deep-blue California! — is one of fewer than a dozen states that still make a distinction between the rape of a spouse and the rape of anyone who is not a spouse. Under California law, rape is defined as “sexual intercourse accomplished with a person not the spouse of a perpetrator.” Legally, penetration is required, which is why typically men are prosecuted for raping women. So-called “spousal rape” is a different crime.
In an effort to drag our rape laws into the modern era, Dauber has joined forces with a list of people who deserve to be mentioned: California Assembly members Cristina Garcia of Bell Gardens and Evan Low of Campbell, state Sen. Dave Cortese of San Jose, Kolieka Seigle of California National Organization for Women and a coalition of progressive prosecutors, including George Gascón of Los Angeles, Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Tori Verber Salazar of San Joaquin County and Jeff Rosen of Santa Clara County.
In a March news conference about the proposed change, Rosen said nearly 10% of the rape cases prosecuted in California involve spouses.
Given such a powerful and progressive provenance, passage of the bill seemed like a no-brainer: There would be hearings in the Assembly and Senate public safety committees, the bills would pass both houses, be reconciled, then Gov. Gavin Newsom, who prides himself on his feminist bona fides, would sign it.
And then the bill ran into a snag. Despite all the ways life has improved for women over the years, many people still believe some of the most pernicious myths about rape.
The chair of the Assembly Public Safety Committee, Reggie Jones-Sawyer of Los Angeles, refused to schedule a hearing, effectively killing the bill in the Assembly for this session.
“I’m trying to figure out what problem we’re trying to solve,” he told San Francisco Chronicle columnist Heather Knight. “A police officer can come to the door in a domestic dispute and basically tell a disgruntled partner, ‘If you tell me he raped you, I can arrest him as a felon.’ If you’re rich and you’re wealthy and you can get attorneys, you can fight off false accusations. If you’re poor and you don’t have any money and you’re a person of color, it can be very difficult to get those charges removed.”
He wants a law, he told Knight, that “does not dismantle family units due to false accusations.”
The comments did not sit well with those pushing to change the antiquated state law.
“To suggest that the police could get Black women to lie to put Black men in jail — oh, my goodness, that’s ridiculous,” Seigle, the first Black woman to lead California NOW, told me. “Anyway, when did the police start believing Black women?”
"We learned in the Persky situation that not every liberal, progressive man is enlightened on the subject of sexual violence," said Dauber, who is co-founder of the political action committee Enough Is Enough.
On Thursday, after conferring by phone with members of the progressive Prosecutors Alliance of California — dedicated to criminal justice reform and community safety — Jones-Sawyer had a change of heart.
“I am thankful for their input,” he said in a statement that evening, “and will request the bill be heard as soon as possible.”
“There are really no cases or crimes that we take more seriously than forcible rape,” Boudin told me. “It should not matter what the relationship is between two people.”
On Friday, the Prosecutors Alliance sent a letter supporting the elimination of the spousal rape exception to Garcia in the Assembly and Cortese in the Senate. Having two separate categories of rape, the letter said, is wrong. “This legal structure is a vestige of misogyny and must be changed.”
So come on, California legislators — it's up to you to bring the state's definition of rape into the 21st century.
There is no spousal rape and regular rape. There is only rape.
Married women deserve no less protection under the law than their single sisters.
This story originally appeared in Los Angeles Times.