In Maryland, spousal rape is against the law if force or a threat of force is used. But prosecutors and advocates say there are still spousal exemptions to rape laws on the books, and those can prevent prosecutors from helping victims.

In Maryland, spousal rape is against the law if force or a threat of force is used. But prosecutors and advocates say there are still spousal exemptions to rape laws on the books, and those can prevent prosecutors from helping victims.

Lisae Jordan, with the Maryland Coalition Against Sexual Assault, told lawmakers on the Senate Judicial Proceedings Committee that the bill to repeal marriage as a defense to sex crimes is badly needed. “I really hope every member of the committee agrees that marriage should not be a defense to sex crimes,” she said.

Debbie Feinstein, chief of the Special Victim’s Division of the Montgomery County State’s Attorney’s Office, told the committee about a case that her office struggled to prosecute.

A man had repeatedly engaged in sex with his wife while she was incapacitated under the influence of legal drugs, Feinstein said. The man also videotaped the encounters, and the woman learned of the incidents when she was alerted that they had been posted to the internet.

Feinstein told lawmakers it was obvious from the videos that the woman was unable to consent. “This woman was raped. Her husband had sex with her on multiple occasions, filming her. It wasn’t just sex; it was disturbing. And we couldn’t prosecute him.”

Feinstein said the man had a defense under current Maryland law: “Incapacity is not one of the categories that eliminates the defense of marriage. So, in this instance, we could not charge him with raping his clearly unconscious wife.”

He was eventually prosecuted on a different charge, Feinstein said, but the man should have faced charges “for raping his wife on numerous occasions.”

Sen. Robert Cassilly, whose district includes Harford County, questioned whether the repeal was needed, since there are other protections for victims under the law. Cassilly ticked off actions victims of abuse can take, including seeking protective orders. “If you don’t want to be touched, put him out of the house with a protective order,” he said.

Cassilly also expressed concern that something that one partner might see as a casual, affectionate touch could turn into a prosecutable offense.

Advocates said the bill makes a distinction between a sex offense and “common expressions of familiar or friendly affection.”

The Senate bill has been cross-filed in the House.