Not the Defendant's Spouse

Not the Defendant's Spouse

The physical and mental parts of § 213.4 describe what the actor touched, why the actor touched it, and what the actor knew. The stem of the section adds a status requirement, which asks who the other person is in relation to the actor. A person is within the stem who has sexual contact with "another not his spouse," or who causes such other to have sexual contact with him.¹ Because that limitation sits in the stem, it governs every subsection that follows. A prosecutor who proves a touching of an intimate part for a gratifying purpose, together with one of the listed circumstances, has still not made out the offense if the other person is the actor's spouse.

The limitation has a long history behind it. The common law treated husband and wife as a single legal unit in which the husband's will prevailed, and that view supported treating an act between spouses differently from the same act between strangers, even when the act would otherwise have been a crime.² In rape law the view took the form of a conclusive presumption, meaning a presumption the factfinder had to accept however much evidence pointed the other way: a wife was taken to have consented to intercourse with her husband as a matter of law.³ That presumption explains why the exception operated as a complete bar to prosecution, with no defense for the husband to raise. Rape required intercourse without consent, and because the wife's consent was fixed in advance by her status, the nonconsent element could never be proven against a husband, whatever she said or did at the time.⁴ The same unity reasoning produced a parallel exception for crimes against property in a spouse's possession, which shows that the sexual exception was one application of a general view of marriage.⁵

Most American jurisdictions have since moved away from the exception. As spouses came to be treated as separate individuals with their own respect and standing, and as attention to domestic violence grew, the premises of unity and presumed consent lost their force.⁶ The vast majority of states enacted statutes protecting a spouse from unwanted sexual conduct by the other spouse, and courts applying such statutes have held that sexual assault is no different when it occurs within a marriage.⁷ Many state courts go further and call the marital exception a relic that violates equal protection under state and federal constitutions, reasoning that marrying does not forfeit a person's ability to refuse unwanted sexual contact.⁸ The logic is direct. The old rule rested on the idea that a spouse's consent was fixed by status, so once each spouse is a separate legal person whose consent belongs to that person alone, nothing remains to support a rule that makes one spouse's refusal legally meaningless.

The trend is real but not uniform. Many courts continue to treat married couples differently, pointing to public policy that supports the marital relationship, to the privacy of marriage, and to the difficulty of reading the particulars of an individual marital relationship.⁹ Even where the formal exception has been abandoned, courts and legislatures often still presume consent to sex within marriage or long-term domestic relationships.¹⁰ A rule that is described as abolished can therefore coexist with a practical leaning toward consent between partners, and that leaning matters to proof rather than to status. For an unmarried couple the status element is met, and the relationship instead colors the questions taken up in the next sections, whether the contact was unwelcome and whether the actor knew it was.

These two layers must be kept apart, because the Code's text and the modern trend answer different questions. The text of § 213.4 keeps the non-spouse limitation, and the original Code is a product of an earlier era that is out of date in some areas; the American Law Institute has begun revising it, and the sexual assault provisions were the first sections taken up.¹¹ State statutes and decisions that abandon the spousal exception describe the law of those states, and they do not rewrite the words of the original stem. A pair of invented scenes shows which fact carries the status element.

A representative state provision shows how a state-law question resolves the status issue. It forbids a spouse or cohabitor to compel the other spouse or cohabitor to engage in sexual intercourse by force, or by a threat of force that reasonably causes fear of physical injury.¹² Two features matter to a student. The provision names spouses as protected persons, so it removes any spousal exception for the offense it defines, and it extends to cohabitors, which a status element keyed only to marriage would not. It also addresses compelled intercourse by force, a different offense from the contact misdemeanor in § 213.4, so its answer on status governs that offense and cannot be carried over to the Code's text.

Students lose this element in two opposite directions. Some recite the Code's stem and ignore a state statute that the question quotes, and others read the trend toward abolition into a question that asks about the Code and treat a married couple as inside § 213.4. A third mistake treats cohabitation as marriage, although the stem asks only whether the other person is the actor's spouse. The stem answers a Code question as written and a quoted statute answers a state-law question, so the source the question names controls the status element.¹⁴