Carmen Lowry, Executive Director at Alaska Network on Domestic Violence and Sexual Assault, speaks to the Senate Judiciary Committee about SB 12, a crime bill, at the Capitol on Monday, March 4, 2019 in Juneau, Alaska. (Michael Penn | Juneau Empire)

Carmen Lowry, Executive Director at Alaska Network on Domestic Violence and Sexual Assault, speaks to the Senate Judiciary Committee about SB 12, a crime bill, at the Capitol on Monday, March 4, 2019 in Juneau, Alaska. (Michael Penn | Juneau Empire)

Lawmakers ask why Alaska still has ‘marriage defense’ against spousal rape

Marriage can be used as defense in some assault cases

Across the country, state legislators are taking aim at a generations-old law that is in almost every state’s statutes: the ability to use marriage as a defense in certain instances of sexual assault and rape.

This past week, that debate arose on the floor of the Alaska House as lawmakers made changes to House Bill 49. HB 49 repeals some portions of the controversial criminal justice reform legislation Senate Bill 91, but detractors said it doesn’t go far enough.

Specifically, the lack of a repeal for the marriage as a defense law, outlined in part in Alaska Statute 11.41.432, exploded as a concern. Specifically, as the Alaska Department of Law’s Criminal Director John Skidmore explained to the Senate Finance Committee on Friday, marriage can be used as a defense in cases where a victim is mentally incapable, incapacitated or unaware that a sexual act is being performed.

[Opinion: Forget awareness, sexual assault survivors deserve real change]

A May 4 Associated Press report stated that the Minnesota Legislature voted earlier that week to eliminate the exemption, and Ohio legislators are working to follow suit.

Carmen Lowry, executive director of the Alaska Network on Domestic Violence and Sexual Assault, said in an interview Friday that she hopes the Legislature can figure out a way to eliminate the marriage defense.

“We believe that just because you get married, you don’t lose your human rights and your rights as an autonomous being,” Lowry said. “We definitely believe that needs to be changed.”

Rep. Sara Rasmussen, R-Anchorage, has been particularly vocal about this issue, and relayed a real-life example during a press conference Thursday morning. The example came from a statewide organization called Standing Together Against Rape (STAR). A woman was on medication after a surgery, Rasmussen detailed, and her husband assaulted her while she was unconscious. The husband ended up not being charged, Rasmussen said. The day before, Rasmussen had proposed an amendment to HB 49 that would have eliminated the marriage defense, but the amendment was voted down, 20-17.

Rep. Matt Claman, D-Anchorage, spoke on the floor against eliminating the marriage defense at this time. He explained that in some cases, someone can get into trouble if they touch their spouse who’s afflicted with Alzheimer’s or dementia that make them go in and out of a solid mental state.

“Those complexities led us to say, ‘Let’s take a little more time, look at this carefully and make sure we get it right,’” Claman said.

Rep. Matt Claman, D-Anchorage, speaks about the House passing a crime bill during a press conference at the Capitol on Wednesday, May 8, 2019. (Michael Penn | Juneau Empire)

Rep. Matt Claman, D-Anchorage, speaks about the House passing a crime bill during a press conference at the Capitol on Wednesday, May 8, 2019. (Michael Penn | Juneau Empire)

Juneau District Attorney Angie Kemp said you can look at just about any law and find a small example like that that can result in an innocent person getting in trouble. Kemp said prosecutors have discretion about how to pursue a case. The Legislature’s job, she said, is to make the laws. Her job is to carry out those laws, and she said lawmakers need to understand that lawyers are able to practically apply the laws.

“You’re never going to be able to legislate to the point where you cover every crazy scenario that you can come up with,” Kemp said in an interview Friday. “… At some point, the Legislature has to trust us that we’re going to do the right thing.”

All of this, both Lowry and Skidmore said, comes down to consent. Skidmore pointed out that Senate Bill 35, originally proposed by Gov. Mike Dunleavy, includes a clause that would eliminate the marriage defense. Eliminating the marriage defense, Skidmore said, would make the law treat married people the same as unmarried people.

HB 49 passed the House and is now in the Senate’s hands, so senators can add an amendment to the bill to eliminate the marriage defense.

Rep. Cathy Tilton, R-Wasilla, left, speaks with Rep. Sara Rasmussen, R-Anchorage, and Rep. Josh Revak, R-Anchorage, on the House floor as amendments to the budget are proposed on Tuesday, April 9, 2019 in Juneau, Alaska. (Michael Penn | Juneau Empire)

Rep. Cathy Tilton, R-Wasilla, left, speaks with Rep. Sara Rasmussen, R-Anchorage, and Rep. Josh Revak, R-Anchorage, on the House floor as amendments to the budget are proposed on Tuesday, April 9, 2019 in Juneau, Alaska. (Michael Penn | Juneau Empire)

Closing up other loopholes

Lowry said that in general, she is optimistic about the way legislators have spoken about sexual assault this session. She said consent and sexual assault are very difficult topics to talk about, but it’s important for lawmakers to talk about them openly. She said there have also been a variety of law changes this session that have taken small but important steps in providing more protections for victims of assault.

“We believe there have been some subtle additions that that will really make a difference because they’re coming from a victim perspective,” Lowry said.

HB 14 has been a high-profile piece of legislation this session, because it closes a gap in state law known now as the Schneider Loophole. In Anchorage, a man named Justin Schneider strangled a woman until she passed out and then ejaculated on her. He pleaded guilty to one charge and served no jail time.

[Opinion: Dunleavy, Legislature show action on fighting sexual assault crisis]

HB 14, which the Legislature passed last week, made that specific act of unwanted contact with semen into a crime. Rep. Geran Tarr, D-Anchorage, has worked in recent years to get law enforcement agencies to test sexual assault kits more quickly. Her bill this year, HB 20, was included in HB 49.

Tarr said she’s been pleased to see the Legislature talk more openly about sexual assault, and next session she wants to pass legislation that clearly defines what consent means, as the state does not currently have an enumerated definition. She said high-profile discussions such as the Schneider Loophole and the marriage defense debate help bring the issue of sexual assault to the forefront.

“They create more momentum, I would say,” Tarr said. “What I think is you need to use that momentum to make big, lasting change.”


• Contact reporter Alex McCarthy at amccarthy@juneauempire.com. Follow him on Twitter at @akmccarthy.


More in News

Photo by Brian Mazurek/Peninsula Clarion 
                                The entrance to the Kenai Peninsula Borough building in Soldotna is seen here on June 1.
Application period for borough relief funds begins Monday

Borough residents can apply for these grants July 13 through July 24.

Homer Farmers Market: Farmers offer stability in times of uncertainty

In a time of uncertainty, it certainly is nice to know where… Continue reading

A Homer Volunteer Fire Department emergency medical technician, left, assists a person who was involved in a boat capsizing, center, as they walk up the load-launch ramp on Wednesday, July 8, 2020, at the Homer Harbor in Homer, Alaska. The crew of the F/V Captain Cook helped rescue the person. The crew of the F/V Casino rescued the other two people who were aboard the 14-foot skiff when it capsized near the entrance of China Poot Bay. (Photo by Michael Armstrong/Homer News)
Police identify man killed in boating accident

The man who died when a skiff overturned on Kachemak Bay last… Continue reading

A sign announcing the closure of Kenai Peninsula Borough School District schools at K-Beach Elementary can be seen on March 26, 2020, near Soldotna, Alaska. (Victoria Petersen/Peninsula Clarion)
School board to vote on 1st day for students

Smart Start plan for KPBSD will be sent to Department of Education by the end of this month

Hospital adds new COVID-19 rooms

An increase last month in positive COVID-19 cases on the lower Kenai… Continue reading

Peonies cover a table, ready to receive people at a field to vase dinner tour hosted by Certified American Grown Flowers on Saturday, July 29, 2017 at Scenic Place Peonies in Homer, Alaska. (Photo by Megan Pacer/Homer News)
Homer Peony Celebration begins this week

With many large or indoor events canceled this year due to the… Continue reading

COVID-19. (Image courtesy the CDC)
9 new COVID-19 cases on the Kenai Peninsula

The central Kenai Peninsula saw growth in the number of new COVID-19… Continue reading

The Betty J. Glick Assembly Chambers in Soldotna, Alaska. (Peninsula Clarion file photo)
Kenai Peninsula Borough Assembly overrides mayoral veto of hybrid election system ordinance

Members of the Kenai Peninsula Borough assembly voted to override a mayoral… Continue reading

Independence Day parade organized after official event gets canceled

Correction: This story and photo captions have been corrected to note that… Continue reading

Most Read