Marital Rape - What a "Can of Worms"!

by Stuart A. Miller

Many states, Virginia included, are hurriedly passing marital rape laws. Major societal policy positions such as this inevitably open a “can of worms”--which is defined by Roget’s II: The New Thesaurus, Third Edition, as “a situation that presents difficulty, uncertainty, or perplexity” and lists “hornets’ nest” as a synonym.¹ 

Fast, angry, biting, stinging insects seems to more accurately describe the issue of marital rape than does a “can of worms,” although there is no doubt that the entire concept of marital rape does present difficult and perplexing implications. 

Marriage already belongs on the endangered species list and deserves our urgent protection. Moreover, the institution of marriage deserves society’s encouragement, especially given that women are safer,² men are healthier³ and all reputable psychological data reveal that children fare best in two-parent, married, intact families. 

However, common sense fails to expose how the possibility of being charged with marital rape is likely to help encourage men to get married. It would seem that it would have the opposite effect. 

But the gloomy impact on marriage derived from marital rape laws is premised on the proposition that men possess common sense. I proffer they do not and are simple, hopeless romantics. 

Contrary to popular propaganda, we do not live in a patriarchal society. Rather, we live in a paternalistic society where we bend over backwards to protect women and children to such an extent that it overshadows our own common sense. 

As a result, most of the hysterical, overreacting legislation designed to protect women is championed by men. This is not to say that the legislation was not suggested by angry, stinging, biting radical feminists. It usually is. But the measures are carried by well-intentioned men who lack common sense and sincerely believe they are “loving women” and in return “loved by women.” 

This romanticism and lack of common sense is why men will probably continue to marry, in spite of the data and the very real possible consequences of such a risky proposition.  

In one of the largest studies of its kind, the American Law and Economics Review⁴ reported that at least two-thirds of divorce suits are filed by women. In cases where divorce is not mutually desired, women are more than twice as likely to be the ones who want out of the marriage. The study, from 1995, also revealed that less than six percent of divorces contained allegations of violence and that women are much more willing to split up because--unlike men--they typically do not fear losing custody of the children. Instead, a divorce often enables them to gain full legal control over the children. 

When women are afraid of having to share custody or of losing custody of the children, they frequently resort to claims of domestic violence to gain legal advantage. In Massachusetts, a survey of lawyers revealed that 70 percent of divorces contained allegations of domestic violence. Attorney Sheara Friend, of the Wellesley firm Kahalas, Warshaw & Friend, estimates that about half of all restraining orders are merely legal maneuvers, where there is no real fear of injury on anyone's part.⁵ 

Most restraining orders expel the husband from his home, award sole custody of his children to the mother, award child support to the mother and are accompanied or immediately followed by  property and alimony claims--all with nothing more than her assertion that she was “intimidated by him or his presence.” 

One might think that someone who wants out of a marriage would be satisfied with a practically guaranteed windfall profit of half the house, ownership of the children, child support payments and possibly alimony to boot. But due to human nature, some people are more selfish and try to hurt or even imprison their former partner. 

Heretofore, false allegations of child sex abuse served as the nuclear bomb in acrimonious divorce proceedings. However, medical examiners and child psychologists have become increasingly more sophisticated. Medical evidence showing no sexual activity on the part of the children, either consensual or coerced, combined with truth revealing psychological inquiry makes false allegations of child sex abuse very risky, as they could backfire and cause the “false allegator” (as they are referred to by police) to lose custody and all the associated benefits and claims. 

However, there is little risk associated with marital rape allegations. All a selfish or vindictive  woman has to do is have sex with her husband and then claim marital rape. According to the Maryland Department of Fiscal Services, the average sentence for rape in that state is 29 years.⁶ 

Without trying to sound like Homo Habilis⁷, many judges will be reluctant to hand down such stiff sentences, in spite of their paternalistic nature--much for the same reason they don’t like charging tenants who are current on rent, with trespassing in their own apartments. Nonetheless, they will likely hand down severe enough sentences to guarantee that a selfish woman wins everything in a divorce. After all, it is a crime for which the man cannot prove his innocence. 

This is disconcerting, especially given that in 1983, the U.S. Air Force Office of Special Investigations found that 27 percent of the rape accusers admitted, either just before taking a polygraph test or after failing one, that they had lied.⁸  In 1994, the Archives of Sexual Behavior reported, that in a survey of all the forcible rape complaints during a three-year period at two large Midwestern state universities, 50 percent of the accusations were false. Fifty-three percent of the false accusations were motivated by a need for an alibi; revenge was the motive for 44 percent.⁹ 

The potential for mischief is so great with the proposition of marital rape laws that the such laws are more likely to do more harm than good. While there may be legitimate cases of marital rape, such acts of violence are already covered by statutes and it is unlikely that benefits from marital rape statutes will outweigh the harm done to innocent men and their children through false allegations of the same. 

We once lived in a society where we held dear that it is better that nine guilty men go free than one innocent man hang.¹⁰  Now, we seem to hold dear the exact opposite--that nine innocent men hang to make sure that one “possibly” guilty man doesn’t escape his “just rewards.” 

Let us hope and pray that men never wake up to the stinging hornets and snapping alligators that are stealing his love, his life, his children, his happiness and even his freedom--or else marriage will cease to exist--as did many of the principles of justice that we also once held dear, that now exist as Poe’s Raven said, “Nevermore.”¹¹