Spousal rape is illegal, yet jurors still struggle to convict

By Emily Temple, WLP Law Intern

As a juror in a spousal rape case, Lisa Yumi Mitchell was thinking “How do you prosecute spousal rape? I was thinking, rape you can prosecute but, for the most part, you would think within a married couple sex is at least somewhat regular in that it would be difficult to try to make a case against your spouse.” This is how Mitchell recalled her thoughts when she was interviewed on NBC’s television show Dateline Mitchell’s reaction was influenced by a common misconception that only strangers commit “real rape” even though, under the law, rape by a spouse is rape.

Spousal rape survivor Crystal Harris reported that her husband, Shawn Harris, raped her three times before she could escape their home. Following death threats and violent behavior, Crystal Harris planted a tape recorder in their bedroom with the hope of catching the threats on tape. Instead, Harris ended up recording her own brutal rape. Taped evidence of forced sexual penetration is extremely rare in rape cases; and yet, prosecuting her rapist was more difficult than Harris expected.

Juror Mitchell remembered being horrified hearing Crystal on the recording: “she was crying, and she kept saying no, don’t do this, stop . . . she must have said stop like 50 times.” Yet, the defense depicted the recording as consensual rape role play. Defendant Shawn Harris testified that this was “just another opportunity to yell and scream and get our adrenaline pumping during sex.” In the end, the jury convicted Shawn Harris of only one charge – oral copulation – and deadlocked on the spousal rape and sodomy charges.*

When the Dateline NBC interviewer asked Mitchell if she thought the jury would have similarly struggled to convict if it had been a stranger who raped Crystal Harris after dragging her into an alley.  Mitchell answered “no, I think it would have been more clear cut had it been a stranger, or had it been anybody else, her boss, a friend, parent, sibling. I think the fact that it was her husband made it more difficult.”

The false belief that rape is committed by strangers when in fact the majority of rapes are perpetrated by someone known to the victim, is a rape myth that impacts the reaction of people to sexual assault, including jurors.  People view rape by a stranger differently than rape by someone the victim knows.  Research demonstrates that when a victim is raped by someone she knows, particularly someone with whom she has had consensual sex, she is viewed more harshly and as less truthful. Schuller & Klippenstine, The Impact of Complainant Sexual History Evidence on Jurors’ Decisions: Considerations from a Psychological Perspective, Psychology, 10 Public Policy, and Law 321-341, 327.  The more intimate the relation, the more likely the victim is perceived as having the intent to have sex and being less sincere in her protests. Id.at 328. According to one study, “as the level of intimacy between the victim and the perpetrator increased, perceptions of the seriousness of the assault decreased, and the level of blame that [study] participants attributed to the victim increased.” Id.

Although the jury in this case struggled with the idea of rape within marriage, marital rape is unequivocally illegal in all 50 states. Early rape laws included a marital exception which permitted men to have non-consensual sex with their wives and escape prosecution. Consent was presumed in marriage; once a woman became a wife, she also became her husband’s property. Historically, rape was only rape if a male assailant forced sex upon a woman who was not his wife.

Spousal rape is illegal, yet the law provides little protection if potential jurors harbor the misconception that rape cannot exist in marriage. Crystal Harris’s experience demonstrates that laws re-victimizing survivors and barriers to marital rape convictions still exist. The greatest challenge facing marital rape survivors is the pervasive myth that rape is impossible between spouses. In order to truly leave the marital exception behind, Americans must understand that spousal rape is indeed rape.


*People v. Harris (http://www.courts.ca.gov/opinions/nonpub/D059126.PDF), D059126, 2012 WL 1651015 (Cal. Ct. App. May 11, 2012), review denied (July 18, 2012), unpublished/noncitable (May 11, 2012).


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3 Responses to Spousal rape is illegal, yet jurors still struggle to convict

  1. Michael says:

    At least in this specific case, it is not an inability to comprehend that spousal rape occurs, it is difficulty of proof. The article would have a bit more journalistic integrity if the author had gone on to quote another statement of Lisa Mitchell, in this Dateline episode, to the effect that in her gut she felt that [the defendant] was guilty on all counts, but [the jury] couldn’t convict on that basis.

    I know Lisa Yumi Mitchell fairly well. Ms. Temple got it wrong in this article. The issue wasn’t whether spousal rape exists or occurs, it’s how you prove it to the legal standard of “beyond reasonable doubt” in the context of a marriage when you have a situation that is almost entirely “he said, she said.” The defense claims that what occured was consensual sex and that the couple frequently engaged in various kinds of roleplay. Go to sex shops and look at pink fuzzy handcuffs, whips, etc. and you can figure out that stuff does occur with some couples.

    Consensual sex had previously occurred in the relationship, they were still married at the time, there is limited physical evidence (the recording) and the only witness evidence is the defendant and the victim. It is obviously horrific for the victim, but difficult for prosecutors and for jurors to objectively meet a standard of proof beyond a reasonable doubt. This was a diligent, courageous prosecution by the SD County DA’s office, and the prosecutor did a good job with a case was not a slam dunk by any means,

    In rape by a stranger/acquaintance or even date rape cases, lack of a prior sexual relationship is common – or it may have been a one time or few time thing that broke off. In an on-going domestic relationship, it is difficult to determine to the degree necessary to convict, whether a particular sex act was consensual or was rape in the absence of eyewitnesses or compelling physical evidence. “No means no” but it is easier to prove no was actually said (and meant) when no current consensual relationship exists.

    In this case, the appealed prior act evidence was significant, but not fully so as the victim remained with her despicable excuse for a spouse, declined to file complaints, *and at various times had consensual sex with the cretin between those incidents and the three incidents charged in the case.*

    What Marriance Piet describes is different – severe beating is pretty compelling, objective physical evidence and in those cases, there is no justification for failing to file a report or to prosecute or convict.

  2. Exactly the point – it is the law that a husband cannot rape his wife. Educate the public. Judges can instruct juries during voir dire that this is the law. It was an obligation to give the jury all the information they need to make an informed/educated decision!

  3. Marianne Piet says:

    As a Clinical Social Worker, I have worked with hundreds of women who have been raped by their husband and/or boyfriends. The police had a difficult time filing a report and pursuing charges because according to police and states attorneys, “A husband cannot rape his wife” These women were severely raped and beaten.

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