The History of Marital/Relationship Rape Laws in America

For most of American history, rape within marriage was not considered a crime and sex outside of marriage was considered a crime. The idea that a husband could sexually violate his wife was not only unacknowledged—it was legally protected. This legal and cultural blind spot was born from patriarchal notions of marriage and ownership, and it wasn’t until the late 20th century that serious progress was made toward recognizing marital rape as a crime. Even today, gaps and inconsistencies remain in how the law treats rape within intimate relationships.

This article traces the long, often painful road toward recognizing marital rape as a real and prosecutable crime in the United States.

The legal foundation for marital rape immunity comes from Sir Matthew Hale, a 17th-century English jurist, who famously wrote in 1736 that a husband could not be guilty of raping his wife.¹ This principle migrated into American common law and persisted for centuries.

This wasn’t simply a theoretical or symbolic stance—it had real legal consequences. As late as the 1970s, a woman reporting rape by her husband could be told by police or prosecutors, “That’s not rape—it’s marriage.”

The marital rape exemption was undergirded by deeply rooted patriarchal values. Wives were seen as subordinate to their husbands, their roles confined to homemaking, childbearing, and sexual availability. Marriage was a contract of ownership, and sex was part of that transaction.

Marital rape also went unrecognized because of the privacy doctrine—the idea that what happens in a marriage is no one else’s business. Courts were reluctant to “intrude” on the private affairs of a married couple, no matter how violent or coercive those affairs were.

Survivors of marital rape faced enormous stigma. If they spoke out, they risked shame, disbelief, and even being blamed for not fulfilling their “wifely duties.” With few legal options and even fewer social supports, many stayed silent.

The 1970s marked a seismic shift in how American society viewed sexual violence. Second-wave feminists pushed back on traditional gender roles and began challenging the legal frameworks that shielded abusers—especially within the family.

The first major breakthrough came in 1975, when South Dakota removed the marital exemption from its rape law. That same year, Nebraska became the first state to criminalize marital rape explicitly.²

Even with growing public awareness, progress was slow. Each state had to amend or repeal its own marital rape exemption laws. Some did so swiftly and cleanly. Others added caveats, such as requiring that the couple be legally separated, or that physical force beyond the rape itself be proven.

By the mid-1980s, several states still maintained partial or full marital exemptions. Advocates continued to argue that rape was about consent, not marital status.

The U.S. Department of Justice and women's rights organizations began publishing reports on marital rape, highlighting its prevalence and the trauma it caused. Studies showed that marital rape was often more violent and repeated than other types of rape, due to the abuser’s access and control.

It wasn’t until 1993 that all 50 states had passed laws removing at least some portion of the marital rape exemption. That year, North Carolina became the last state to criminalize rape within marriage.³

However, even with all 50 states recognizing marital rape as a crime, not all were created equal. Many states still imposed additional legal burdens on marital rape cases that didn’t apply to stranger or acquaintance rape:

- Shorter statutes of limitations

- Higher requirements for physical evidence

- Mandatory proof of violence or threats

- Legal separation requirements

These barriers made prosecution difficult and sent a mixed message to survivors: your rape matters, but less so if you were married to your rapist.

Unlike other crimes, rape laws are governed at the state level, so there is no singular federal definition of marital rape that applies in all contexts.

However, some progress has been made federally: In 2005, the Violence Against Women Act (VAWA) was reauthorized with expanded protections for sexual assault victims, including those within intimate partnerships.⁴

The Department of Justice’s definition of rape, updated in 2012, includes any form of nonconsensual penetration—regardless of the relationship between victim and perpetrator.⁵

Still, major challenges remain:

- Underreporting: Many survivors of marital rape don’t report due to fear of retaliation, financial dependence, custody concerns, or disbelief.

- Low prosecution rates: Prosecutors may be reluctant to take on complex, high-burden cases with little public support.

- Social stigma: Survivors often face disbelief or are told they “should have expected it” or “should have left.”

Today, all 50 states recognize marital rape as a crime in some form. That alone marks an enormous cultural and legal shift from where the country stood even 50 years ago.

However, the inconsistent language, barriers to prosecution, and ongoing social stigma reveal that America still has far to go.

Some states—like California and New York—have removed virtually all legal distinctions between marital rape and other forms of rape. Others still include exemptions or procedural hurdles. A few require the couple to be separated or divorced for the crime to be prosecuted.

Survivors of marital rape still face disbelief not only from their communities, but also from law enforcement and even judges.

Nevada’s path to criminalizing marital rape mirrors the national struggle—but with added complications tied to how the state defines and prosecutes sexual assault.

For much of its history, Nevada upheld versions of the marital exemption. As late as the 1990s, Nevada law still included language requiring force or threat of force and often demanded additional proof when the accused was a spouse.

In 2007, Nevada legislators made a key change. They revised state law to eliminate the spousal exemption entirely. Now, under Nevada Revised Statutes (NRS) 200.366, sexual assault is defined as any nonconsensual penetration, regardless of the relationship between the parties.⁶ Consent—not marital status—is the determining factor.

However, legal reform does not always translate into justice. Survivors in Nevada continue to face systemic barriers: reports downplayed by police, hesitancy by prosecutors, and fear of retaliation or custody loss.

Even with the law on their side, many victims face disbelief and inaction—especially when the accused holds power. Nevada may have closed the marital loophole, but cultural and institutional accountability still lags behind.

The fight to criminalize marital rape in America is a powerful example of how cultural norms can shape—and distort—the law. For centuries, marriage was treated as a license to control, dominate, and violate without consequence.

Recognizing marital rape as a crime was a necessary first step. Now, the challenge is to ensure that laws are enforced, barriers are removed, and survivors are supported—no matter who raped them.

In the eyes of justice, rape must be rape. Always.

Bibliography

1. Matthew Hale, *The History of the Pleas of the Crown* (London: E. and R. Nutt and R. Gosling, 1736).

2. Diana E. H. Russell, *Rape in Marriage* (Bloomington: Indiana University Press, 2010).

3. National Criminal Justice Reference Service, “Marital Rape: History, Research, and Practice,” accessed 1999, https://www.ncjrs.gov.

4. U.S. Department of Justice, *Violence Against Women and Department of Justice Reauthorization Act of 2005* (Washington, D.C.: GPO, 2005).

5. Federal Bureau of Investigation, “FBI Updates Definition of Rape,” January 6, 2012, https://www.fbi.gov/news/pressrel/press-releases/updated-rape-definition.

6. Nevada Legislature, *Nevada Revised Statutes §200.366*, https://www.leg.state.nv.us.