By Simon Johnson, CLA attorney
Recent legislation is the latest in a string of attempts to remove archaic language from the Ohio Revised Code that allows some forms of marital rape in our state.
Advocates are hopeful Ohio House Bill 161 is on track to change this deeply troubling reality. And while generations of change are likely needed before we get where we need to be as a society, this legislation is a bright spot perhaps indicating a slight unwinding of toxic cultural norms around gender roles, sexual assault, and marriage.
The proposed legislation has bipartisan support and was passed by the Senate April 24 and the House on November 29, 2023. It would remove what’s considered to be a “loophole” under current law that protects perpetrators from prosecution in the case of spousal rape as long as no threat of force or violence exists. This often looks like the use of drugs or other substances to incapacitate the victim. The loophole is a vestige of the old and broader spousal expectations to rape, many of which were removed in the 1970s. Ohio is one of a handful of states with any spousal exceptions still on the books.
In reality, most of us agree that saying “I do” at the altar should not negate the need for consent to sexual activity. Most of our lawmakers seem to agree too, with the proposed legislation passing the House 74-1. On April 24, 2024, it passed unanimously in the Senate. The bill now heads to Governor DeWine’s desk.
As is often the case, the law lags behind our evolving social norms which causes real problems for impacted individuals and highlights the most needed places where our society needs to do its hardest work.
Most victims impacted by this loophole are likely to be in abusive marriages. They are shouldering an ongoing cycle of abuse that can take many forms, from emotional to physical to sexual violence, at the hands of someone they once loved and trusted. Incapacitating your date to sexually assault her would never be okay and is, in fact, illegal. How can that be any different when the “date” is your wife? When our laws don’t empower victims to access justice and achieve the full protection they need, things get worse instead of better. Victims who try to access protection may be unsuccessful. Abuse that took the form of sexual violence may be minimized, with perpetrators held accountable for only a small portion of the harm they caused. And worst of all, survivors who don’t get the closure and remedies they need are more likely to experience short and long term consequences like anxiety, fear, sleep issues, eating disorders, depression, sexual distress or dysfunction, body image issues, flashbacks, emotional pain, and other mental health issues.
With archaic laws like this on the books, entire systems may become immune over time to the occurrence of sexual violence in marriage. If there’s no way to stop it, has it somehow become acceptable? We can resoundingly say “No, it is not acceptable.”
So even as we watch the progression of HB 161 and feel some hope for change, we must remember the origin of laws like the marital rape exception. And even when the law changes, we also must remember that there is still much work to be done. Systems and mindsets will change slowly. Many will still believe sexual assault in marriage is “too hard” to prosecute and charges that should have been brought will never see the courtroom.
To really move the needle on this, we need to use this legislation as a springboard for a much broader change in societal attitude - an opportunity to evolve, challenge norms, and come together to end sexual violence in all forms. To the media, content creators, and advertisers - the images we see can help break down stereotypes and redefine healthier gender norms. To law enforcement and the criminal law system - survivors need your educated and trauma-informed responses. To religious advisors - examine the powerful role you can take in holding men accountable for sexual violence and empowering survivors. As important as “innocent until proven guilty” is for our criminal defendants, so must “believed until proven otherwise” be for our survivors. How can you help survivors share their truth, shine a light on their reality, and name their experience rather than watering it down?
And (ironically) with the most power here: to men and boys, let’s call each other out. Let’s be norm-breakers. Concepts of toxic masculinity lurk behind every corner - and certainly in the remnants of spousal exceptions to rape in the law of our land. Together we create these social constructs, and together we can dismantle them. This can look like organized work in the form of educational programming on high school and college campuses. But it can also ripple out in the ways we interact with one another, the comments we no longer tolerate, and the way we raise our sons.