Change sought for Ohio’s ‘archaic’ rape law

Lawmaker says spousal rape in some cases can’t be prosecuted.

Forcible rape of a spouse became illegal in Ohio in 1986, but sections of the state’s rape law apply only when the spouse is not living with the offender — “archaic” language that a state lawmaker says puts Ohio in the dark ages.

“People can’t believe it’s still on there,” said State Rep. Greta Johnson, D-Akron. “They assumed it was taken away a long time ago.”’

Johnson and State Rep. Teresa Fedor, D-Toledo, this week introduced House Bill 234 to remove the marital exception language where it exists in the rape and sexual battery laws and eliminate the statute of limitations on prosecuting rape cases.

“The bill is an effort to bring Ohio out of those dark ages and create access to justice for all victims,” said Johnson, who was a assistant county prosecutor for a decade before being elected to the House in 2014.

Forcible rape of anyone, including a spouse, is illegal in Ohio, Johnson said. But sections of the law covering non-forcible rape that occurs when the victim is impaired, such as when drugged or too intoxicated to resist, only apply if the victim “is not the spouse of the offender,” she said. Similar marital exception language is in Ohio’s sexual battery law.

In those cases even if there was a video of the unconscious spouse being raped a prosecutor could not bring rape or sexual assault charges, she said.

Marital exceptions to rape laws were the norm in the United States until the mid-1970s. But marital rape has been illegal in every state and the District of Columbia since 1993, according to the Rape Abuse and Incest National Network, an anti-sexual assault organization.

Before 1986, marital rape was not illegal in Ohio unless the couple had a separation agreement or court filing to dissolve the marriage, according to a Cleveland Law Review article written by Lalenya Weintraub Siegel in 1995.

State Rep. Jim Butler, R-Oakwood, who heads the judiciary committee that will consider the Johnson/Fedor bill, said he supports eliminating the statute of limitations for rape and the marital exception that he said potentially denies victims justice.

“There is no statute of limitations for murder and there also shouldn’t be for rape,” Butler said.

However, the Ohio Prosecuting Attorneys Association opposes lifting the statute of limitations on rape, said John Murphy, executive director. He said the limits exist because people who have been harmed “ought to make a complaint promptly and bring the case forward promptly, prosecute the case promptly.” Otherwise memories fade, witnesses die or disappear and defendants lose the ability to defend themselves, he said.

Murphy’s group has not weighed in on the marital exception issue.

Currently, only murder and aggravated murder have no statute of limitations on prosecution in Ohio. Johnson said if a murder case can be tried decades later, so too can a rape case.

“In my mind these offenses, while not a loss of life, it’s the loss of the life that they once had,” Johnson said. “Every rape victim I’ve ever encountered defines their life in two sections: before it happened and after it happened. I can never as a prosecutor give that victim the day before it happened.”

The bill comes after other rape-related legislation that passed the House on May 12. House Bill 6 extends the rape statute of limitations from 20 years to 25 years, allowing five additional years to file rape charges from the date a suspect has been identified through DNA.

The proposed law, now being considered in the Senate, is an effort to allow rape charges in cases stemming from the huge backlog of rape kits that piled up across the state and are now being tested in Ohio Attorney General Mike DeWine’s crime lab. In those cases the victims did come forward and were tested for rape, but for reasons that have never been fully explained, law enforcement officials across the state did not test the kits. The evidence languished until DeWine made it a campaign issue in 2010 and began testing the backlogged cases at no charge to the jurisdictions.

Butler credited State Rep. Jeff Rezabek, R-Clayton, with helping forge a compromise that assured House passage of HB 6. Rezabek said the current 20-year limit is about to expire on more than 300 of the rape kits this year, and another 300 to 400 annually in the future.

Rezabek hasn’t seen Johnson and Fedor’s bill and said he would need to review it before commenting. State Rep. Niraj Antani, R-Miamisburg, said he thinks HB 6 appropriately addresses the statute of limitations issue, but he is open to eliminating the marital exception.

“I do think we have to protect rape victims whether they are married or not,” Antani said.

Johnson and Greg Flannagan, spokesman for Montgomery County Prosecutor Mathias H. Heck Jr., both said they couldn’t recall a case where they were unable to prosecute a spouse for rape because of the marital exception. But Johnson said rape victims have enough hurdles without Ohio’s law having “archaic” language that makes a prosecutor have to establish in court that the victim of a sex crime is not the spouse residing with the defendant.

“I’ve called it the murder of the soul because it takes away a part of who that person was,” she said. “No amount of restorative justice is ever going to make that person whole.”

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