Although I love you,@ jym626, I don’t find this even faintly amusing in this case.
^^^
Would anyone venture to explain the pun?
@harvestmoon1 - Look it up in the urban dictionary…
Well that’s a new one for me. EVen my son had no idea! what that meant. Thanks Michigan.
@Cardinal Fang Re: 279…First of all: CA is a “yes means yes” state. 2nd of all: all the section says in what you quoted was that marriage does not automatically expunge you from culpability if you are accused of rape.
Let me put it another way. In CA “yes means yes”. In CA you are deemed incapable of consent if you are drunk. Do you think there is ANY chance that a husband who has sex with his (otherwise) consenting drunk wife has ever been tried for rape? I found plenty of cases of non married cases where one of the participants was arrested and tried (usually the man). That is what we mean by the implied consent being different. And, again, just to reiterate, that is in CA which is different than most other states in its laws.
@jym626 I found the pun quite funny. Sorry @Consolation
CF, no one here is saying that marriage is sufficient - please read the posts. That part simply says that if there is an issue with consent, marriage or dating alone do not prove consent ("…shall not be sufficient"). This simply means that this one factor is not decisive, and rape can happen in a marriage. So when the victim’s words are against the defendant’s words, and there is no conclusive physical evidence, what would a jury be allowed to consider? That would be influenced by what other factors the courts considered in the past.
So, my point is: don’t just quote statutes. US courts do not apply them in vacuo. Research recent case law and see what other courts in the same jurisdiction had to say about the wording you highlighted. If you have access to West or Lexis, it is relatively easy to do.
I’m not convinced that what you say is dispositive. First of all, it’s not true that in California “you are deemed incapable of consent if you are drunk.” You have to be more than just drunk-- you have to be very drunk. Are you saying that in California you have found plenty of cases where a guy was tried for rape by intoxication? When I’ve examined this, I haven’t been able to find many cases, though I may not have looked in the right place. I get the impression that the Rape by Intoxication statute is used, not to nail guys who had sex with “otherwise consenting” women who were drunk, but guys who had sex with women that didn’t consent at all, and the prosecutor thinks the drunkenness would be easier to prove than the lack of consent.
Secondly, the police can only investigate, and prosecutors can only try, cases that are brought to them. If it is rare for a spouse to accuse a spouse of Rape by Intoxication, then it would follow that it would be rare for a spouse to be arrested and tried for Rape by Intoxication. If Rape by Intoxication prosecutions are already rare, and spousal accusations of rape are rare among rape accusations, then it follows that a Rape by Intoxication prosecution of a spouse would be exceedingly rare, but not because the prosecutors think that marriage implies consent.
Thirdly, prosecutors don’t want to try cases they’ll lose. If jurors are reluctant to convict spouses of rape even in the most egregious cases-- and they are-- then even though prosecutors are convinced that the accused is guilty under black letter law, they might not prosecute.
“yes means yes” states…
?
There are states where each must “say yes” first to any sexual touching? I wasn’t aware of that.
Happy couples assume that the answer is “yes” unless told otherwise.
Actually he is not being charged with rape. The specific charge is “sexual abuse in the third degree.” When reading the Iowa code I now understand better what this jury is grappling with.
Don’t get caught up in terminology. Iowa’s statute 709, quoted by HarvestMoon1, is the one that accused rapists are charged with. In Iowa, the crime is named sexual abuse, not rape. Notice the words “performs a sex act” in the first sentence of the quote. Here’s the definition of “sex act”:
Notice also that contact between hand and genitalia constitutes a sex act within the meaning of the law.
The distinction that the statute draws between cohabiting and non-cohabiting spouses may well be unconstitutional as applied.
Right @CF but my point is that I was operating under the impression that the jury was going to have to find that penetration took place to conclude he was guilty. Given the way that statute is written I think they are going to have a harder time getting a" not guilty" result. I agree with another poster that noted upthread that the jury instructions will be very important here.
Right, HarvestMoon. The jury might be convinced beyond a reasonable doubt that a “sex act” occurred. So then they have to turn their attention to the more difficult issue of consent.
So, under Iowa’s law, what he is accused of doing would not have been a crime at all if they had still been living together at home? That’s how I would read the statute.
That confused me as well @Hunt.
That’s right, @Hunt. The Iowa marital rape exception is limited, but seems to apply in cases where the alleged abuse is not violent or against the person’s will, and the couple lives together as a married couple. So it is legal for a woman to have sex with her husband who has Downs and who she lives with, though in other circumstances it would not be legal for someone to have sex with that person. It is legal for a man to have sex with his 14-year-old wife whom he lives with, though it would not be legal for him to have sex with that child otherwise.
There seems inherent in that statute the implication that with cohabitation there can be no issue of “capacity” to consent. For couples living together the only consideration is “force” and whether the act was done “against their will.”
It seems to me, then, that this particular case is a bad application of the law, because while arguably these people are not currently cohabiting as husband and wife, that is not because they are divorced or separated. I wonder if the defense argued in pretrial motions that they were, in effect, still cohabiting, because of his frequent visits and continuing to tend to her personal needs, etc. If I were the judge, I’d be looking for something like that to get rid of this case.
But notice that the Iowa lawmakers explicitly did not include people who were institutionalized. They could have said that it is legal to have sex with your institutionalized spouse, even though that spouse could not legally consent to sex with anyone else. But they didn’t.