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California Legislature Stalls Efforts to End Spousal Rape Distinction

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Two identical bills aiming to end the distinction between spousal rape and other types of sexual assault have stalled in the California State Legislature. The measures, Assembly Bill (AB) 812 and Senate Bill (SB) 530, would have updated the state’s criminal code to consider spousal rape equally punishable as the rape of a non-spouse.

“This bill would repeal the provisions relating to spousal rape and make conforming changes, thereby making an act of sexual intercourse accomplished with a spouse punishable as rape if the act otherwise meets the definition of rape,” the text of AB 812 said. “By changing the definition of a crime, this bill would impose a state-mandated local program.”

While spousal rape is illegal countrywide, California is one of 11 states that distinguishes spousal rape from other forms of rape. Currently, those who are charged with spousal rape in the state are eligible for probation and may not have to register as sex offenders.

“Existing law requires a person convicted of spousal rape to register [as a sex offender] only if the act involved the use of force or violence for which the person was sentenced to state prison,” the text of AB 812 said. “This bill would require a person convicted of rape of a person who is the perpetrator’s spouse to register as a sex offender under all circumstances defining rape.”

The existing distinction is “based on the idea that men have a property right of sexual access to the bodies of their wives,” Stanford University law professor and sociologist Michele Dauber said to the Associated Press. “Historically, men could rape their wives with impunity.” 

Nevertheless, neither bill received a committee hearing in its respective chamber before the deadline of April 30.

Sen. Dave Cortese, who introduced SB 530 and is the principal coauthor for AB 812, withdrew SB 530 after amendments proposed by the Senate Public Safety Committee. Cortese converted the legislation to a two-year bill and plans to continue altering the language before reintroducing it next year.

Cortese’s fellow co-authors Assemblymembers Cristina Garcia and Evan Low objected to AB 812 not receiving a hearing in the Assembly Public Safety Committee.

“Not providing AB 812 a hearing directly contradicts the urgency to modernize our penal code to be [in] line with our values and make clear that no means no,” Garcia said. “Current spousal rape statutes say that in California, a marriage license allows a spouse to violate both the body and the dignity of a non-consenting spouse with minimal accountability.”

As a result, the bills are expected to make a return to the legislature floor next year at the earliest.

“For decades, California has treated the rape of a spouse differently than all other sexual assault. While the legal description of what constitutes spousal and non-spousal rape are the same, the penalties are not,” Cortese said in a statement. “Attempts to equalize these heinous crimes in prior years have been met with both progress and failure alike. Time has long since passed for California to declare that rape is rape.”

Ellie Zhang is a City News Intern for the spring 2021 quarter. She can be reached at yitangz@uci.edu.