If a husband drugs his wife for sex it’s not a crime in Ohio ... for now

Effort underway to change Ohio law that allows rape between spouses in some circumstances.

In Ohio, spouses are still given a pass when rape occurs in some circumstances, and that may not be changing anytime soon.

A bill introduced by a Democratic lawmaker that would eliminate “marital privilege” from all rape statutes has yet to attract a single Republican sponsor.

Marital rape as defined in the Ohio Revised Code is illegal and punishable as a felony. Under that definition, rape occurs when a defendant compels a spouse to engage in sexual intercourse against the victim’s will by “force, threat of force, or deception.”

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But Ohio is one of eight states with an exemption that treats certain encounters between spouses differently than if two people were unmarried. For example, if a husband drugs his wife and then rapes her, it would not fall under the state’s marital rape statute, according to the bill’s supporters.

“Husband drugs spouse to an unconscious state, through a drink or a pill or whatever it may be. He ‘ruffies’ wife into an unconscious state and has sex with her. It is not a crime,” said state Rep. Greta Johnson, D-Akron, a former assistant prosecutor in Summit County.

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Johnson introduced House Bill 97, which would remove the exemption of marital privilege from all the rape statutes as well as from subsections that address sexual battery, sexual imposition and gross sexual imposition. Eight states have spousal exemptions within their rape laws and 13 states have such exemptions for lower-level felonies.

“It is just so antiquated,” Johnson said. “It shouldn’t be on the books at all in Ohio. Spouses are not property.”

But Johnson and state Rep. Teresa Fedor, D-Toledo, introduced a similar bill two years ago that failed to gain traction, and that might be the case again.

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John Murphy of the Ohio Prosecuting Attorneys Association, which opposed the Johnson-Fedor bill, said removing such exemptions may open the door to false claims made in an attempt to gain leverage in custody and divorce cases.

“The problems of proof was one concern. This happens between husband and wife in private — it’s one person’s word against another,” Murphy said of the previous bill. The association has yet to examine the latest version.

Johnson admits that getting the bill through the Republican-dominated legislature is an uphill battle, though she notes a bipartisan, bicameral committeeupdating Ohio’s criminal laws recommended eliminating the spousal exemption. There is a chance the bill could get folded into another piece of legislation that passes, she said.

Non-forced marital rape often occurs in relationships governed by domestic violence, according to Johnson. “Women will say ‘I had sex with him so he wouldn’t hit me again.’ They aren’t even acknowledging that that’s rape or that is sexual violence. There is either consent or there is rape. Those are two very different things.”

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Last year, lawmakers agreed to extend the statute of limitations for rape from 20 to 25 years, though some legislators pushed to wipe it out entirely.

Meanwhile, the Ohio House voted 92-2 last week in favor of a bill that updates domestic violence laws to allow victims of dating violence to obtain civil protection orders against their attackers. Current law only defines domestic violence as occurring between spouses, those living together or family members.

Only Ohio and Georgia do not extend domestic violence protections to victims in dating relationships.

What is marital rape?

In 1986, Ohio partially lifted the marital exemption so that rape within a marriage can be prosecuted when force or the threat of force is used. Drugging the spouse victim, though, isn’t considered force, according to the law.

The marital exemption remains intact in other sexual assault laws, such as sexual battery or gross sexual imposition.

Source: Patricia Falk, Cleveland State University, Cleveland-Marshall College of Law, summer 2015 report.

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