California Law Eliminates Spousal Rape Exemption—But “Patriarchy Still Dies Hard”

“A marriage license is not an excuse for committing one of society’s most violent and sadistic crimes,” said Democratic Assemblymember Cristina Garcia, author of a new law on spousal rape.

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Up to 14 percent of married women experience marital rape.  (Phiend / Flickr)

On Thursday, California Governor Gavin Newsom (D) signed a bill mostly eliminating an antiquated distinction in California law between “spousal rape” and rape, which has for years resulted in more lenient penalties for perpetrators who rape their spouses.

“From the beginning of our efforts, we have been clear that rape is rape. A marriage license is not an excuse for committing one of society’s most violent and sadistic crimes,” said Assemblymember Christina Garcia, chair of Legislative Woman’s Caucus. “The first question a rape victim is asked should not be whether or not they are married.”

Assembly Bill 1171 eliminates section 262 on spousal rape in the California Penal Code to ensure perpetrators convicted of raping a spouse are subject to the same mandatory imprisonment and sex offender registry requirements as those convicted of raping someone who is not their spouse. The previous law had allowed spousal rapists to plea bargain their sentence down to probation and gave judges discretion as to whether to list them on the state’s sex offender registry.

“The rape of a spouse was probation-eligible in every case, even those involving force or violence, compared to rape of a non-spouse, which involved a three-year mandatory sentence to prison. That created all kinds of inequalities and unfairnesses,” said Michele Dauber, a Stanford law professor and chair of Enough is Enough Voter Project, who led the effort to pass the bill.

In 2018, Daubert led a successful recall campaign against Santa Clara Superior Court Judge Aaron Persky after he gave Stanford swimmer Brock Turner a light sentence for sexually assaulting an unconscious woman behind a dumpster on campus.

The previous law also did not allow prosecution for rape when a spouse was unable to give legal consent because they were under the influence or unconscious, when a perpetrator threatened their spouse with retaliation, or when a perpetrator fraudulently represented the situation. A.B. 1171 law removes these spousal exemptions.

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The Women’s March in Austin, Texas, on Jan. 21, 2017. (Steve Rainwater / Flickr)

A grassroots coalition of women’s organizations, criminal justice reformers, labor organizations, survivors, elected officials, and activists across the state fought for repeal of the spousal rape exemption, led by Enough is Enough Voter Project, California National Organization for Women and Feminist Majority.

“This is a historic victory for our grassroots movement of survivors and advocates across the state, thousands of whom demanded the repeal of the spousal rape exception,” said Dauber.


“The spousal rape exception is a legacy from 18th century English common law in which women were essentially the sexual property of their husbands—the theory being that they had given irrevocable sexual consent at marriage.”


According to the National Coalition Against Domestic Violence, up to 14 percent of married women experience marital rape.

“The spousal rape exception is a legacy from 18th century English common law in which women were essentially the sexual property of their husbands—the theory being that they had given irrevocable sexual consent at marriage. These laws gave impunity to husbands who raped their wives,” says Dauber.

For decades, feminists across the country fought to end spousal rape exemptions. Nebraska was the first state to repeal their spousal rape exemption in 1976. All 50 states either completely or partially repealed their spousal rape exemptions by 1993. Some states, however, continued to treat spousal rape differently from rape of non-spouses, including allowing shorter time limits for reporting spousal rape, imposing an additional requirement of force or threat of force by spousal offenders, and the excluding spousal victims altogether from some sexual assault offenses.

In California, feminists have repeatedly fought to eliminate the spousal rape exemption.

“There have been at least 12 separate efforts to get rid of the California spousal rape exception starting in 1977,” said Dauber. “Spousal rape was not a crime at all until 1979. And even when it was criminalized, it was treated less seriously than other similar sex offenses.”


“Spousal rape was not a crime at all until 1979. And even when it was criminalized, it was treated less seriously than other similar sex offenses.”


Today, nine states continue to distinguish “spousal rape” from “rape.” Idaho and Ohio recently passed spousal rape reform bills. The reform in California was hard won, says Dauber.

“I was surprised personally at how difficult it was to pass this bill. We saw a lot of misogyny and a lot of belief in rape myths on the part of legislators while we were fighting for this bill,” says Dauber. “This was a very hard fight. It was terrible. It was a two-year grueling slog through some of the most misogynistic, unimaginable opposition. It took a very, very big investment on the ground organizing to get this done. What we learned in this campaign is that patriarchy still dies hard.”

At one point, the chair of the Assembly Public Safety Committee Reggie Jones-Sawyer refused to schedule a hearing for the bill, effectively killing it. He expressed concern that the law may “dismantle family units due to false accusations.”

“It’s ridiculous,” said Kolieka Seigle, president of the California chapter of the National Organization for Women. “There should be no opposition. Whoever commits rape, against a spouse or not, should have parity in punishment. That’s all we’re asking for. In liberal California, people think we’re so progressive. We’re not!”

Advocates eventually persuaded Jones-Sawyer to allow a hearing for the bill.

Legislators, however, added a last-minute amendment exempting spousal rape of people unable to give legal consent because of a mental disorder or developmental or physical disability, which Dauber described as a “get out of jail free card to men who rape their disabled spouses.”

“We repeatedly explained that this amendment would grant impunity to husbands who raped their disabled wives, and that marital status was not a legitimate basis on which to make a distinction in the law of rape. For example, victims who were disabled due to traumatic brain injuries, Alzheimer’s, or stroke would have no protection against being raped by a spouse,” said Dauber, who identifies as disabled. “It is heartbreaking that while we were able to achieve a lot in this bill, we had to leave behind the most vulnerable survivors.”

Dauber said Enough is Enough will go back to Sacramento in January to amend the law to fix this issue. “There is still more to do, and Enough is Enough will continue to fight until every survivor is protected.”

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.