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Senate approves removing marital exemption for sexual abuse from state code


Senate approves removing marital exemption for sexual abuse from state code

Feb 26, 2024 | 7:17 pm ET
By Caity Coyne
Senate approves removing marital exemption for sexual abuse from state code
Sen. Ryan Weld, R-Brooke, speaks on the Senate floor on Monday, Feb. 26, 2024 in Charleston, W.Va. (Will Price | West Virginia Legislative Photography)

For the first time in state history, spouses could soon be charged with sexual abuse against their partners if a bill passed by the state Senate on Monday is accepted and passed by the House.

Senate Bill 190 would eliminate marriage as a defense for first- and third-degree sexual assault by striking out language in the state’s sexual offense statute that defines “marriage” and that allows exceptions for certain kinds of assault when people are married or “living together as husband and wife regardless of the legal status of their relationship.”

The bill passed the Senate 22-9 with three members absent and not voting. Four of those voting against the bill — Sens. Mike Azinger, R-Wood; Mark Hunt, R-Kanawha; Patrick Martin, R-Lewis and Mark Maynard, R-Wayne — previously voted it down when it was up in the Senate Judiciary Committee last week. On the floor Monday, they were joined in their dissent by Sens. Amy Grady, R-Mason; Glenn Jeffries, R-Putnam; Robert Karnes, R-Randolph, Rollan Roberts, R-Raleigh and Eric Tarr, R-Putnam. 

No lawmakers who voted against the proposed law shared their reasoning during Monday’s floor session.

In an interview following the vote, Grady said she wanted to be “cautious” about levying criminal charges against someone who may be wrongly accused. She cited divorce proceedings, which can sometimes get “messy,” and where a spouse could attempt to weaponize a threat of sexual abuse as “ammunition” in a custody battle.

“I feel like this is too broad … my concern [is] if it is used in divorce courts for the woman in custody battles to make the man look like there are [accusations] against him,” Grady said. “We know that it’s innocent until proven guilty, but we also know in the court of public opinion, you are guilty until proven innocent. Especially on social media and things like that, it opens a can of worms.”

Other lawmakers, including Sen. Patricia Rucker, R-Berkeley, who was absent for Monday’s floor session, as well as Azinger and Hunt, echoed Grady’s concerns during last week’s Judiciary Committee meeting.

False rape and sexual assault allegations are rare, according to the National Sexual Violence Resource Center, accounting for about 2-8% of all accusations made, the same as most other violent crimes. That data only accounts for assaults that are reported to police, and according to the Bureau of Justice Statistics’ National Crime Victimization Survey, less than one-third of sexual assaults are reported to law enforcement annually and sexual offenses are the least reported crimes in the United States. 

Of those that are reported, according to a data analysis from the Rape, Abuse & Incest National Network, less than 6% of cases end in an arrest, only about 0.7% lead to a felony conviction and only 0.6% result in the perpetrator going to jail or prison. Experts have said that rape and sexual abuse are some of the hardest crimes to prosecute due to stigma levied against victims and the high burden of proof necessary to obtain a conviction.

Grady, when asked about how frequently she believed false sexual abuse allegations are made, said she “didn’t know.”

“I don’t know, and that’s the problem. I’m just cautious on the side of ruining somebody’s reputation with it being false. I’m cautious about it,” Grady said. “It’s not that I don’t think something should be done about it if it’s really happening, but I just feel like it would be more of an opportunity for those messy divorces to be messier and to create more problems.”

In the Senate Judiciary Committee last week, Monongalia County Prosecuting Attorney Gabrielle Mucciola told lawmakers that the current code makes it more difficult to prosecute crimes that are already occurring  between spouses.

“These cases are wildly underreported, and I would say that this exemption creates just another hurdle for victims of sexual abuse and sexual assault to come forward and feel comfortable that West Virginia adequately protects them,” Mucciola said. 

According to the Centers for Disease Control and Prevention, nearly 17% of women and 8% of men have experienced sexual violence other than rape by an intimate partner or spouse at some point in their life. West Virginia is one of a handful of states that allow an exemption to spouses for sexual abuse charges.

Sen. Ryan Weld, R-Brooke, a proponent of the bill who has spoken in favor of it both in committee and on the floor Monday, said that the only thing the proposed law would change is ensuring that everyone — no matter their relationship or marital status — had the same rights and protections afforded to them by the criminal justice system. 

“This is not an incident where someone merely might just grab somebody on their rear as they’re walking through the kitchen, but instead, the touching is the result of forcible compulsion, so that is the focus here,” Weld said. “The marital exception exists — has existed — in our code for quite some time and I think now is the time to correct an injustice.”

“Forcible compulsion,” according to the proposed code, is defined as any sort of threat, intimidation or physical force used to commit sexual abuse. Under the code, people who are charged with sexual assault could be convicted of a felony and imprisoned for 15 to 35 years for first degree and one to five years for third degree. Penalties are higher if victims are underage.

Weld said the efforts this year to close the marital exemption loophole are, to him, a continuation of work taken on by his predecessor, former state lawmaker Judith Herndon, in the 1970s. Herndon represented Ohio County in the Senate as a Republican — one of only eight at the time and the only woman, Weld said — when, in 1976, she championed a law to end the exception in the sexual assault portion of code. The law proposed this year, he said, takes the exception out of all instances of sexual abuse and assault. 

“This is carrying on what I believe to be an unfinished job that she was not able to get done before she unfortunately died in 1980,” Weld said. 

Following the Senate’s passage, SB 190 will now advance to the House for consideration. A similar bill — House Bill 5578 — was introduced and sponsored by Democrats in the House, but has been pending consideration in House Judiciary since Feb. 12.

Earlier this month, members of the House voted unanimously with nine members absent and not voting to amend the controversial “Women’s Bill of Rights” and include language removing the marriage defense for first- and third-degree sexual assault. That bill — HB 5243passed the House earlier this month and is pending in Senate Judiciary.

On Monday evening, members of the Senate Judiciary Committee advanced their own version of HB 5243, which Grady is signed on as a lead sponsor. That version of the bill does not at this time include the marital rape exemption.