Marriage is not a defense to sexual assault in W. Virginia

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West Virginia Gov. Jim Justice delivers his annual State of the State address in the House Chambers at the West Virginia Capitol, Jan. 11, 2023, in Charleston, W.Va. (AP Photo/Chris Jackson, File)

For decades, the law of the land in West Virginia stated that if two people were married, or even legally separated, they could not be convicted of certain sexual assault charges against their spouse.

But now, that law has changed.

West Virginia Gov. Jim Justice signed the bill known as Senate Bill 190 into law on March 22, according to a review of the legislature’s docket. It goes into effect on June 6.

The bill was introduced by Republican state Sen. Ryan Weld and builds off legacy legislation introduced in 1976 by the state’s only female Republican lawmaker at the time, Judith Herndon. That year, she guided a law into passage for the first time stating that said a married person could face criminal charges for the penetrative rape of their spouse. Herndon died in 1980.

SB 190 stripped the term “marriage” from West Virginia state code on sexual assault and further modified the language around sexual contact.

Weld said from the floor of the state Senate last month before the governor signed the bill that it was long past due to “correct an injustice,” the Intelligencer reported.

For years, if you were married to someone in West Virginia and you touched them in a private area “as a result of forcible compulsion,” you could not be convicted of a crime, Weld said in February.

And this wasn’t about someone grabbing their partner on the rear as they were walking through the kitchen or something similar, Weld remarked. This was about forcible, compulsory touching of a person’s buttocks, sexual organs, breasts or anus.

Weld did not immediately return a request for comment to Law&Crime on Monday.

Before the legislation landed on Justice’s desk to be signed, it was met with some controversy, according to WTOP. A proposed amendment by Republican state Sen. Patricia Rucker called for additional language to be added that would have stated that “implied consent exists between married partners.”

Further, Rucker wanted an amendment to the law that would have stated that consent could not be obtained when a person “deliberately attached misrepresents their true identity or biological sex to the victim” or “knowingly and potentially exposes another to a sexually transmitted disease without informing the victim in advance.”

Both amendments were defeated.

The same outlet reported that another lawmaker, Republican Sen. Mike Azinger, withdrew an amendment to bill that would have allowed for assault charges against spouses only if two people from outside of the marriage witnessed it.

In a 2022 Psychology Today report, it was noted that for centuries, sexual intercourse within a marriage was considered an inherent right to the male spouse and wives were deemed a possession, or chattel.

But legal loopholes in state sexual assault laws have been left open, exposing key vulnerabilities in marital exemptions for rape. That would include some state exemptions for when a spousal rape victim was drugged, for example.

A 2006 study on marital rape by sociology professor Raquel Kennedy Bergen, Ph.D., stated that while marital rape has been found to occur across all ages, races, social classes, and geographic locations, research at the time indicated that nearly two-thirds of marital rape survivors were first raped by their husbands when they were under the age of 25.

“Risk factors for marital rape include a history of being battered by the husband, pregnancy, and attempting to leave the violent relationship. Research on the effects of marital rape has indicated that the experience often has severe and long-lasting physical and psychological consequences for women. Long-term effects include disordered eating, sleep problems, depression, and sexual distress,” Bergan found.

If you or someone you know is a victim of domestic violence, information and support can be found online through the National Domestic Violence Hotline or you can call 1-800-799-7233.