Marital Rape in South Carolina: Not as Illegal as Hoped

Marital Rape in South Carolina: Not as Illegal as Hoped

The legislation that surrounds the institution of marriage for years has evolved to qualify and define the rights and obligations of married people. Based on the historical definition of marriage, and the roles and rules that define each spouse involved in the marriage, women were considered to be chattel, or property, that was passed from father to husband at the time of marriage. As a “property” owner, the husband had the duties and obligations to maintain his wife by providing her proper food, clothing, and other necessities. The wife, in exchange for receiving these goods, had her own obligations and duties to her husband, largely maintaining the home, producing the children, and being available for sexual encounters with her husband.

Marital Rape Law and the Historical Definition of Marriage

Though the definition of the institution of marriage and the roles outlined within have drastically changed since the times where women were perceived as chattel, there are certain laws and legislation that took a long time to change, and still to this day marriage does not fully appreciate the autonomous value that a woman has. One of the main legislation still at issue is marital rape. Marital rape was found to be illegal in 1993 when states finally acknowledged that just because forced sex occurred in a marriage does not mean that it was no longer rape. At the end of the day, spouses were required to provide consent to sexual encounters with their spouses, just as non-married people had the right to consent or not to consent. However, the legislation in all 50 states has been slow to rectify the disparities between what the law is and what marital rape victims are required to prove to show marital rape.

South Carolina Marital Privilege

South Carolina is one of eight states (including Alaska, Arizona, Idaho, Maryland, Minnesota, and Washington) whose marital rape statutes are not quite up to par, and require survivors of marital rape to prove that their spouses used violence, force, or threat of force/violence for rape to be found within the marriage. These states have what is called “marital privilege,” which writes into law a higher standard that spouses must prove to show that a marital rape has been committed; many of the marital rape evidence thresholds are higher than what the average rape victim would have to prove. In other words, in the eyes of certain states, marital rape is different than non-marital rape.

South Carolina’s Marital Rape Statute

According to South Carolina’s marital rape statute, it states that there is no marital rape between the couple unless the spouses are living separately and the conduct of the assaulting spouse is the sexual battery that rises to the first or second degree. Therefore, the South Carolina marital rape statute requires that there is a use of aggravated force or coercion, the type that requires some level of violence between the partners.

What the Disparity Between Marital and Non-Marital Rape Statutes Mean

The significance of two separate legal standards to qualify rape based on marital status is that those who have decided to enter into marriage run the risk that they will not receive the same level of recourse for acts of sexual violence against them as their non-married counterparts. This further complicates the understanding of “consent” in marriage, and provides little protection to those who are abused, sexually and otherwise, as a result of their marital status.

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Domestic violence can occur in all types of families and the experienced family law attorneys at Klok Law Firm LLC can provide protection for those men and women who require protective orders to protect themselves and their families. Contact Klok Law Firm LLC today for an initial and confidential consultation.

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