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Can You Be Convicted Of Spousal Rape In Michigan?

by | Sep 25, 2020 | Sex Offenses |


Historically, rape laws provided a martial exemption in English and American jurisprudence.  It is rooted in biblical traditions that a spouse has an obligation to have sexual relations with the other spouse, so the idea that he or she can be deprived of consent did not make sense under the law.  This martial exemption used to be codified by statute in all 50 states.  In fact, the 1962 Model Penal Code regarding rape overtly begins with the statement that “[a] male who has sexual intercourse with a female not his wife is guilty of rape…”.  Michigan law was no exception and the law used to provide that “’[a] person does not commit sexual assault under this act if the victim is his or her legal spouse, unless the couple are living apart and one of them has filed for separate maintenance or divorce.”

In People v Kubasiak, 98 Mich App 529; 296 NW2d 298 (1980), a man was living separated from his wife.  However, he and another individual entered his wife’s apartment by breaking the window glass with another object and entering.  He found his wife in the living room and forced her into her own bedroom to engage in sexual intercourse against her will.  He was charged with first-degree criminal sexual conduct.  The district court judge found there was probable cause at the preliminary exam that this crime was committed and bound the matter over for trial in the circuit court.  The defendant filed a motion to quash the information, contending that the marital relationship precluded a finding that first-degree criminal sexual conduct had been committed.  The circuit court judge refused to dismiss the charge, so the defendant brought the matter to the Michigan Court of Appeals.  The majority found that the charge should have been dismissed because the statute clearly provided an exemption from prosecution.  Although the defendant was living apart from his wife, nobody filed for separate maintenance or divorce as required by the marital exemption law, so he could not be convicted of raping his wife and the charge should be dismissed.  Judge Burns filed a concurring opinion in the case, agreeing that the result was proper due to the plain language of Michigan law but strongly urging the Michigan Legislature to change the law and prevent this unfortunate situation from happening again.

The Legislature listened and passed legislation to nullify the marital rape exemption.  Effective June 1, 1988, MCL 750.520l reads as follows:

  • “A person may be charged and convicted [of criminal sexual conduct in the first, second, third and fourth degrees and assault with intent to commit criminal sexual conduct] even though the victim is his or her legal spouse. However, a person may not be charged or convicted solely because his or her legal spouse is under the age of 16, mentally incapable, or mentally incapacitated.”

The statute largely wipes away the marital exemption and makes a person subject to criminal charges if he or she engages in sexual contact with a spouse without his or her consent.  However, an exception exists in the plain language of the statute for spouses that were “mentally incapacitated”.  The Michigan Penal Code defines “mentally incapacitated” to mean “that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.”  MCL 750.520a(k).  This means that a spouse can potentially drug his or her spouse with consent and then engage in sexual contact without their permission or knowledge.  In recent years, women’s advocacy groups have called attention to the “mentally incapacitated” language as a major “loophole” that opens the door to legalized sexual assault.

On September 11, 2019, Rep. Laurie Pohutsky introduced House Bill 4942 which sought to amend MCL 750.520l by removing the words “mentally incapacitated” as an exemption.  This bill still has not been passed by the Michigan House of Representatives.  At present, a spouse cannot be charged and convicted of sexually assaulting a “mentally incapacitated” spouse if this incapacity is a result of alcohol or controlled substances being administered without consent.  However, this marital rape exemption is always subject to change if the Legislature takes action.

A charge of sexual assault is extremely serious and can result in fines, probation and even imprisonment.  In addition, the offender can also be subject to lifetime registration on Michigan’s Sex Offender Registry for life.  Failure to comply with the requirements of the sex offender registry can subject the individual to additional criminal penalties and further imprisonment.  You need a criminal defense lawyer in your corner that will vigorously protect your rights and hold the prosecutor to their burden of proof to find you guilty beyond a reasonable doubt.  You also need a lawyer that understands the nuances and exemptions contained in the statutes involving Michigan’s sex crimes.  It may be these lesser known laws that means the difference between regaining your freedom and losing it for years to come.

If you or a loved one is charged with any crime and need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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