clock menu more-arrow no yes mobile

Filed under:

Donald Trump's lawyer said it's legal to rape your spouse. Nope.

Ron Galella/Galella Collection via Getty

Here is something a lawyer for the Republican presidential frontrunner said in the year 2015: "By the very definition, you cannot rape your spouse."

This is, of course, completely wrong. Every state and the federal government allows people to prosecute their spouse for rape. But that hasn't been the case for nearly as long as you might think.

Donald Trump's ex-wife once accused him of rape (but has walked it back)

In 1989, Donald Trump — who was reportedly angry over a botched plastic surgery — allegedly had forcible sex with his then-wife, Ivana Trump. In their divorce proceedings in the early 1990s, she described the encounter as "rape."

The Daily Beast, in an article by Tim Mak and Brandy Zadrozny, has the details of the incident, as reported in an unflattering 1993 book about Trump written by journalist Harry Hurt III:

Donald held back Ivana’s arms and began to pull out fistfuls of hair from her scalp, as if to mirror the pain he felt from his own operation. He tore off her clothes and unzipped his pants.

"Then he jams his penis inside her for the first time in more than sixteen months. Ivana is terrified… It is a violent assault," Hurt writes. "According to versions she repeats to some of her closest confidantes, ‘he raped me.’"

In 1993, Ivana Trump published a statement saying that while she had felt "violated" by the encounter, she didn't mean rape "in the literal or criminal sense." And this morning, she issued a statement saying, "The story is totally without merit."

When the Daily Beast called Michael Cohen, who is special counsel at the Trump Organization, for comment, Cohen repeatedly threatened to "ruin" the reporters. But he also said this: "And, of course, understand that by the very definition, you can’t rape your spouse. It is true. You cannot rape your spouse. There’s very clear case law."

On Tuesday morning, after the piece was published, Cohen issued a statement apologizing for making an "inarticulate comment — which I do not believe" to the Daily Beast. It's not clear exactly which comment Cohen is referring to — his contention about rape, or his threats to "mess [the reporters'] life up."

For what it's worth, the Trump campaign is claiming that Cohen isn't affiliated with them. For what it's worth, that is patently false. Cohen issued a statement to the press a few weeks ago after Trump came under fire for including a picture of Nazi uniforms in a patriotic Twitter graphic.

The definition of rape does, in fact, include raping your spouse

If Cohen is apologizing for what he said about the definition of rape, he's right to do so. Because what he said about the definition of rape is totally wrong. In 2015, no state in the US — or the federal government — exempts married couples from its rape laws.

Even if Cohen had been talking about 1989, when the incident is alleged to have taken place, he'd still be wrong. In 1989, marital rape had been considered rape in New York State for five years. A 1984 New York Supreme Court ruling, regarding a husband who got around a restraining order by using a visit with his son to lure his wife to a motel room, struck down a state law that prevented prosecutions of marital rape.

But what's surprising is that it had only been illegal for five years at the time of the alleged incident. And in fact, had the Trumps been somewhere else in 1989 — say, Oklahoma — it would have been legal for Trump to rape his wife.

But 40 years ago, marital rape was totally legal

As late as the mid-1970s, marital rape was legal in every state in the US (and under federal law). Legal scholars argued that that went back to ancient principles of common law: Marriage was a contract, and, implicitly, part of that contract was sex. (There were also concerns about how hard it would be to prove that a husband had really raped his wife — the sort of arguments you currently hear today about the impossibility of proving "gray rape" cases in which the victim was intoxicated or failed to fight the rapist off.) As US Sen. Jeremiah Denton said in a Senate Judiciary Committee hearing in 1981, "When you get married, you expect to get a little sex."

Feminist legal scholars like Robin West spent years challenging the marital rape exemption. They pointed both to the lack of rational basis for the laws (saying it was arbitrary to punish a crime only in certain circumstances) and to the laws' roots in a vision of marriage that treated women as property. (If you happen to want to know more about this, I highly recommend Fred Strebeigh's book Equal: Women Reshape American Law.)

States started abolishing the marital rape exemptions in 1976 — though it wasn't until 1978, in Oregon, that a husband was successfully prosecuted for raping his wife after a state closed the marital rape loophole. From there, several state legislatures took action, but it was slow going. In fact, in 1984, before the New York court decision, the New York Senate had rejected an attempt to get the marital loophole out of its rape law. Meanwhile, however, state courts like New York's were also taking action to strike down the loopholes on their own.

Since 1993, when Oklahoma and North Carolina passed laws reforming their rape laws, marital rape has been illegal everywhere. But many states took until the 21st century to fully treat marital rape like any other kind of rape (as opposed to having higher legal requirements for marital rape, or imposing lighter penalties). Some states still don't. South Carolina only considers marital rape a crime if it's "accomplished through use of aggravated force."

None of this makes Cohen's comments to the Daily Beast any less wrong, of course. Ivana Trump could have gone to the police in 1989 and asked the state of New York to bring charges against Donald Trump for rape. But while it's always easy to mock a blowhard lawyer for being wrong, it's worth thinking about how recently it was that he would have been right.