Maryland Law currently provides a marital defense to sexual crimes and states “[a] person may not be prosecuted under § 3-303 [Rape in the First Degree], § 3-304 [Rape in the Second Degree], § 3-307 [Sexual Offense in the Third Degree], or § 3-308 [Sexual Offense in the Fourth Degree] for a crime against a victim who was the person’s legal spouse at the time of the alleged rape or sexual offense.”[1] This statute does contain an exception that the spousal defense may not be utilized when “the person in committing the crime, uses force or threat of force and the act is without the consent of the spouse.”[2]

The concept of a marital defense arises from the common law legal doctrine of Coverture, the belief that a woman, including her sexuality, is considered property of her husband upon marriage.[3] The common law rationalized that a husband cannot commit a sexual offense against his wife as she is his property and legally belongs to him to do as he pleases.[4] The spousal defense has been upheld in Maryland but has not been addressed by Maryland Appellate courts since 1997.[5]

Legislation was presented during the 2020 Maryland General Assembly session in order to eliminate marriage as a defense to sexual crimes.[6] The legislation was introduced to the House of Delegates as HB0590 and the state Senate as SB0230.[7] Dr. Dardis, assistant Professor at Towson University, presented written testimony in support of the bill that ten to fourteen percent of women are raped by their husbands.[8] Dr. Dardis also published thirty-eight peer-reviewed papers on sexual violence and concluded that victims of marital sexual violence suffer greater physical harm than victims of nonmarital sexual violence.[9]  Unfortunately, the Maryland General Assembly had to end the session early due to the pandemic and neither of the bills passed. Additionally, the bill had previously gathered criticism from Maryland Republican Senators over how consent is communicated between spouses and what constitutes sexual contact under the meaning of the legislation.[10]

The legislation has since been amended and introduced during the 2021 Maryland General Assembly session as SB0250/HB0147 known as Love is No Defense to Sexual Crimes Act.[11] The revised bill still repeals § 3-318 in its entirety, but also includes a new definition of sexual contact after Senate Republicans pushed back on the legislation at a hearing for the Judicial Proceedings Committee.[12] The new bill defines sexual contact as “the intentional touching of genitals or other intimate areas for sexual arousal, gratification, or for abuse and specifies that sexual contact does not include contact “for a medical purpose, a common expression of affection, or the ‘physical contact commonly engaged in by two individuals in a sexual relationship’ unless one individual indicates that it is unwanted.”[13] The Love is No Defense to Sexual Crimes Act passed through the House of Delegates and is set to be heard before the Senate and House committee.[14] Thirty three states have already repealed the marital exemption to sexual crimes and now the Maryland Coalition Against Sexual Assault wants the bill passed to prevent Maryland “from being last in this historic shift.”[15]

Neha Khan is a 2L at the University of Baltimore School of Law. She graduated from the University of Maryland College Park with a B.S. in Family Science. This past summer she interned at JM Blattner, LLC, a family law firm in Towson, Maryland where she is now working full-time as a law clerk. Currently, she is serving as a representative for the Family Law Association (FLA) and the Women’s Bar Association (WBA) and she is a member of the Asian Pacific American Law Student’s Association (APALSA) at UB. She also currently serves as a Student Ambassador for the law school’s Office of Admissions, a staff editor for the UB Law Forum, a research assistant, and a UB LEADS Mentor for the incoming 1L class.

[1] Md. Code, Crim. Law § 3-318.

[2] Id.

[3] Maria Pracher, The Marital Rape Exemption: A Violation of a Woman’s Right of Privacy, 11 Golden Gate U. L. Rev. 721 (1981).

[4] Id.

[5] See e.g., Lane v. State, 348 Md. 272, 293, 703 A.2d 180, 191 (1997). See also Briscoe v. State, 40 Md. App. 120, 131, 388 A.2d 153, 160 (Md. 1978), cert denied, 283 Md. 730 (1978) (holding that non-spousal character is not a necessary element of a sexual crime, and spousal character may be pled as an affirmative defense).

[6] H.R. 590, 441st Gen. Assemb., Reg. Sess. (Md. 2020), S. Con. Res. 230, 441st Gen. Assemb., Reg. Sess. (Md. 2020).

[7] Id.

[8] Kimberly Seif, Bill to Repeal Spousal Defense for Sexual Crimes Moves to Maryland House of Delegates, Balt. Sun (March 30, 2021) https://www.baltimoresun.com/politics/bs-md-pol-spousal-defense-sex-crimes-bill-20210330-pwkopqejfbgprizgob4naojvem-story.html

[9] Id.

[10] Id.

[11] H.R. 147, 442nd Gen. Assemb., Reg. Sess. (Md. 2021), S. Con. Res. 250, 442nd Gen. Assemb., Reg. Sess. (Md. 2021).

[12] Seif, supra note 8.

[13] Supra note 11.

[14] Id.

[15] Seif, supra note 8.