West Virginia Senate passes bill that would remove marital exemption for sexual abuse

FILE - Education Committee Chair Patricia Rucker, R-Jefferson, speaks with Finance Committee counsel Jeff Johnson and analyst Chris DeWitte during a recess at the Capitol in Charleston, W.Va., Jan. 30, 2019. Married people in West Virginia could be charged with certain sexual assault acts against their spouses for the first time under a controversial bill passed by West Virginia’s Republican-dominated Senate on Monday, Feb. 26, 2024. Sen. Rucker said she wanted to support the legislation, but she was worried about people “trying to take advantage” of the statute and falsely accusing a spouse. (Craig Hudson/Charleston Gazette-Mail via AP, file)

CHARLESTON, W.Va. (AP) — Married people in West Virginia could be charged with certain sexual assault acts against their spouses for the first time under a controversial bill passed`Monday by West Virginia’s Republican-dominated Senate.

The bill, sponsored by former prosecuting attorney Republican Sen. Ryan Weld of Brooke County, would remove marriage as a defense to first- and third-degree sexual assault. It now heads to the House for consideration.

“The marital exception exists or has existed in code for quite some time,” Weld said. “And I think now is the time to correct an injustice.”

Weld explained that there are two crimes of sexual violence outlined in state code: penetrative rape, and secondly the forcible touching of a person’s sexual organs, breasts, buttocks or anus by another person.

For the latter offense, a martial exemption shields a person from conviction if the crime is perpetrated against their spouse. Even if the couple is legally separated, an individual accused of such sexual abuse couldn’t be charged.

Until 1976, a married person couldn’t be charged with penetratively raping their spouse. That law was changed at the urging of the former Republican Sen. Judith Herndon, then the only woman in the Legislature.

Weld honored Herndon on the floor before the bill passed 22-9, with three senators absent or not voting.

“This is carrying on what I believe to be an unfinished job that she wasn’t able to get done before she unfortunately passed away in 1980,” Weld said.

Passage comes after some lawmakers expressed hesitation about it at a tense Senate Judiciary Committee meeting last week.

GOP Sen. Patricia Rucker of Jefferson County, who abstained from voting because she was out sick Monday, said she wanted to support the legislation, but worried about people “trying to take advantage” of the statute with false accusations.

“If there was more protections to make certain that there wouldn’t be abuse of it by people who are just trying to hurt the other person, it would be, I think, a very easy vote,” she said. “I for myself am concerned about the weaponization, unfortunately, of marital contact.”

She proposed an amendment that would have added language to the bill stating that “implied consent exists between unmarried partners” except in cases where one partner has “explicitly and overtly withdrawn consent.”

The change would also have added a provision saying consent can’t be obtained when a person “deliberately attached misrepresents their true identity or biological sex to the victim” or “knowingly and potentially exposes another to a sexually transmitted disease without informing the victim in advance.”

The amendment was narrowly defeated in an 8-8 vote.

Speaking in opposition, Democratic Sen. Mike Woelfel of Cabell County said each spouse has responsibilities to fulfill in a marriage, but “forcible sex is not one of them, and forcible sexual touching is not one of them. “

“I think it would go against the concept that a woman can say no emphatically and that means no, and that’s it, and if you cross that line, it’s not appropriate,” he said.

Weld, who also voted ‘no’, said he was concerned about the “implied consent” language, which he explained goes back to a belief at the time of English Common Law that “a wife is the chattel of her husband,” a possession given from her father to the husband.

“I would hope that we have progressed beyond that point,” Weld said, adding that to go back to an impled consent standard would be “a step in the absolute wrong direction.”

A later withdrawn amendment by Republican Sen. Mike Azinger of Wood County would have required that sexual abuse be witnessed by two people outside the marriage for charges to be brought.

He cited an Old Testament passage in the Bible that states that a man shall be put to death with the testimony of two to three witnesses, but not on the testimony of just one witness.

“God’s law says in Deuteronomy, ‘two or more witnesses,'” he said. “It seems only just and fair that there should be somebody else who saw what happened.”

Azinger withdrew the amendment after Weld objected.

“You know who didn’t make second-class citizens out of wives?” Weld said, adding, “we are essentially saying through this amendment, ‘Your word doesn’t count. Your word is not good enough in order to convict somebody of sexually abusing you.'”

During the meeting, Monongalia County Prosecuting Attorney Gabrielle Mucciola said the state Supreme Court has upheld that a jury can convict on the uncorroborated testimony of a victim if they considered that testimony credible.

These cases are commonly unreported, she said, and the marital exemption just creates another hurdle for victims.

“I just can’t understand why within a marriage that should be any other different than it is, let’s say, in a relationship without marriage — what we trust prosecutors to do on a daily basis on any other sex crime,” she said.