As of October 1st, 2023, spousal rape will no longer have the marital loophole that allows hundreds to get away with this crime. Currently, the courts cannot convict someone of sexual assault or rape because of the spousal defense.
To understand these changes, you must look at what marital rape and sexual assault are, the previous law and the one now in effect.
Understanding marital rape and sexual assault
Marital rape and sexual assault happen when one spouse has intercourse or sexually assaults the other without consent. This is only true within a marriage and not a separation.
Under the current law
The current law for a matter like this is very old, and “marriage” implies consent under this older version. It’s a carryover from colonial times, and Maryland is one of the last states to keep this loophole for marital rape and sexual assault open. “Hale’s law,” as it’s known, has been around since the 1700s, and essentially says that you can not rape or sexually assault a spouse because they gave their consent to any sex act just by marrying. Even though this act may have constituted a sexual assault by non-marital standards, marital rape was considered a totally different matter, which opens a loophole for someone who rapes or assaults their spouse.
The law now
The new law closes this loophole so that spouses can no longer use it to escape a rape charge or sexual assault against their partner. It essentially repeals Hale’s law and removes the disparity between the conviction of marital and non-marital rape, making the standards of proof the same for both acts, and cancelling the implied consent that marriage provides.
As of October 2023, the legal difference between “marital rape” and “standard” rape will be eliminated in all 50 states.