The latest controversy to light up the sky in the political fireworks show that is Donald Trump involves a Trump Organization attorney named Michael Cohen, who responded to a Daily Beast reporter’s questions about a decades-old (and mostly-recanted) accusation rape by claiming that spouses can’t be raped:
Michael Cohen, special counsel at The Trump Organization, defended his boss, saying, “You’re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody. And, of course, understand that by the very definition, you can’t rape your spouse.”
“It is true,” Cohen added. “You cannot rape your spouse. And there’s very clear case law.”
The accusation Cohen was responding to came from a deposition from Trump’s first divorce, from Ivana Trump, and was included in a 1993 book on Trump. The book included a note from Ivana Trump in which she softened the accusation, and Ivana Trump is currently defending her ex-husband over the Daily Beast story. Cohen, who went on to level a profane series of threats at the reporter, has since apologized. Given Trump’s recent history, the story doesn’t figure to hurt his chances with Republicans, and may even strengthen them.
As disturbing as this story is, however, there is an eye-opening kernel of information embedded in that same Daily Beast article, which noted that although spousal rape is, indeed, a thing that exists and is against the law, that wasn’t true in New York state until 1984. The Democratic-controlled New York State Assembly tried to pass a law removing marriage as a defense for rape in 1982, but it was blocked by the Republican-controlled State Senate. In 1983, Mario Liberta becme the first man in state history to be convicted of raping his wife, and a year later, the New York Court of Appeals upheld that conviction and struck down the state’s marital rape exemption. In 1984!
If that’s not sickening enough for you, then consider that it was still legal to rape your wife in some parts of the United States until July 5, 1993. North Carolina and Oklahoma were the last holdouts. That means you could have legally raped your wife to the tune of “Whoomp! (There It Is)” or “Man on the Moon.”
But the fine legal mind behind The Trump Organization isn’t all that far off-base. Even though marital rape has been criminalized in all 50 states, there remain significant differences in the way states treat rapes that occur within marriage. From The Daily Beast‘s Samantha Allen:
As of April 2014, according to an AEquitas report, eight states still had marital rape exemptions for some offenses, not including the states without exemptions that simply prosecute marital rape differently.
Ohio state law, for example, contains two distinct subsections for rape, one of which applies only to “sexual conduct” with someone who is “not the spouse of the offender” or a separated spouse. This section applies to situations in which the offender uses a “drug, intoxicant, or controlled substance” to lessen the victim’s resistance and cases in which the victim has a “mental or physical condition” that prevents consent. But this section does not apply to sexual conduct between cohabitating spouses, in which case there must be “force or threat of force”—not just coercion—for rape legislation to even apply in the first place.
The 1993 cutoff, as recent as it is, is also deceptive because even after that, it was still legal to rape your wife under certain circumstances. For example, it wasn’t until 2002 that Virginia passed a law removing the provision that “marital rape cannot occur unless the spouses were living apart or there was bodily injury caused by force or violence,” a law that was passed over the objections of this guy:
In fact, one of this year’s leading presidential contenders has prominently featured the endorsement of a Republican legislator who opposed criminalizing spousal rape at all. During a floor debate on the issue in 1980, several Republicans voiced opposition to removing the marital rape exemption from state law, including State Rep. Tom Bush, who equated the law with “invading the sanctity and intimacy” of marriage, and then-State Rep. John Mica, who cited the Bible in defense of legal wife-rape:
“[T]he Bible doesn’t give the state permission anywhere in that book, for the state to be in your bedroom and that’s exactly what this bill has gone to. It’s meddling in your bedroom, the state of Florida as an entity deciding what you can do and what you can’t do. . . . [W]e don’t need to go to meddlin’ in the marriage bedroom.”
That’s the same Jon Mica (R-FL) who currently serves in the U..S. House of Representatives, and whose endorsement is proudly being touted by former Governor Jeb Bush (R-FL):
While Donald Trump’s campaign tries to distance itself from Michael Cohen, it might be worth asking Jeb Bush if he’s still proud of that endorsement.
Listening to Trump’s lawyer might seem like a sickening blast from a long-ago past, but as the very recent past demonstrates, the right not to be raped by your spouse is still an open question to some people, and still one for which there is insufficient protection.