Bill to repeal spousal defense for sexual crimes advances

Bill sponsor calls current prohibition ‘antiquated’

By Kimberly Seif
Capital News Service

A Maryland bill that would repeal the prohibition on prosecuting some sexual crimes against a victim who is the spouse of the assailant has been referred to the House Judiciary Committee after passing through the Senate in a unanimous vote.

SB0250, the Love is No Defense to Sexual Crimes Act, is co-sponsored by Sen. Susan Lee, D-Montgomery, and Sen. Jeff Waldstreicher, D-Montgomery.

Current Maryland law states that a person cannot be prosecuted for certain sexual crimes — including first- and second-degree rape, and third and fourth-degree sexual offenses — if the victim was the person’s legal spouse at the time of the offense.
Lee called this prohibition “antiquated” during the bill hearing on Jan. 20, and said that it stemmed from a time where spouses were believed to be the equivalent of property.

Dr. Christina Dardis, an assistant professor of psychology at Towson University, agreed with Lee in her written testimony submitted to the Senate Judicial Proceedings Committee.

Dardis has published 38 peer-reviewed papers on sexual violence and intimate partner violence and cited that this marital exemption originates from 18th century English common law that states a woman’s legal existence is suspended during marriage.

In her testimony, Dardis stated that 10-14% of women are raped by their husbands in their lifetime, and a study indicated that marital sexual violence resulted in “significantly more physical injuries to survivors” than non-marital sexual violence.

“The existence of the spousal defense to rape and other sexual offenses sends a message to society that rape is less serious of a crime when committed against a spouse instead of an acquaintance or stranger,” the Family and Juvenile Law Section of the Maryland State Bar Association stated in their written testimony.

Lee stated during the bill hearing that passing SB0250/HB0147 would put Maryland in line with 33 other states that have completely repealed a marital exemption from sexual crimes laws.

“Today, unwed victims of sexual crimes have more protections than those who are married to their assailant,” Lee said during SB0250’s hearing, which Capital News Service viewed.

State lawmakers have been trying for several years to pass this bill.

In the 2020 Maryland General Assembly session, identical legislation was introduced in the House of Delegates and the state Senate in the form of HB0590 and SB0230. That session ended early due to the pandemic and neither bill was passed by both chambers.

In addition to repealing marital exemption, SB0250 would alter and clarify the definition of sexual conduct.

This provision was not a part of the original bill, but was added as an amendment and adopted after pushback from Senate Republicans during a hearing in the Judicial Proceedings Committee about how consent is communicated in a marriage and what constitutes sexual contact.

Sexual contact is defined in this amendment as the intentional touching of genitals or other intimate areas for sexual arousal, gratification, or for abuse.

The legislation also specifies that sexual contact does not include an action that was completed for a medical purpose, a common expression of affection, or the “physical contact commonly engaged in by two individuals in a sexual relationship” unless one individual indicates that it is unwanted, according to the written bill.

The second section of the amendment specifies that sexual contact, under this definition, without consent, is prohibited.

The cross-filed bill, HB0147, was passed through the House of Delegates without any amendments.

Because the Senate bill was amended, a House committee will hold a hearing on the legislation, scheduled for April 1.

The House bill awaits a vote in a Senate committee.