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.
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.
I am shocked and disheartened that any law maker in 2019 could support marriage as a defense in sexual assault. Thank you to those who voted YES to remove marriage as defense in statute. #akleg https://t.co/vfBXlORWQG— Rep. Sara Rasmussen (@sararasmussenak) May 8, 2019
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.
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.”
Thank you to 49th Rising for creating this graphic explaining our work to remove the marriage defense to sexual assault in Alaska law #akleg pic.twitter.com/B1eiDRGWCu— Matt Claman (@mattclaman) May 11, 2019
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.
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.
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 email@example.com. Follow him on Twitter at @akmccarthy.