Let’s just get it done.
Kansas has an embarrassing and archaic spousal exemption buried in the statute on sexual battery, meaning no one can be prosecuted for unwanted, abusive sexual contact if that person is married to the victim. The confounding lack of progress on removing the exemption must end in this session.
The exemption is a holdout from a less enlightened time, when most laws on sexual abuse had marital exemptions. Marriage, it was thought, implied consent to any and all sexual activity. Such exemptions began falling out of favor in the 1970s and 1980s as women’s rights within a marriage were strengthened. Most exemptions were removed, including the marital exemption to rape in Kansas, and wisely so. Forcing anyone into sexual activity they are not comfortable with, even if that person is a spouse, should be a crime.
The marital exemption to sexual battery, however, has remained, and not simply from lack of attention. Legislative committees have now taken up the issue in multiple sessions. Domestic violence and sexual assault organizations have lobbied for removal. The removal has faced no serious opposition. We identified the failure to remove the exemption as one of the three biggest mistakes made by the Kansas Legislature in the last session, alongside individual tax decoupling and Medicaid expansion.
The Legislature’s failure to act makes Kansas one of only eight states with a spousal exemption to a sex crime still on the books.
The current sexual battery statute is not simply outdated. Removing the exemption would give prosecutors an additional tool to prosecute offenders in notoriously complex domestic violence cases. Domestic violence, defined as a pattern of controlling, abusive acts in a relationship, is one of the most difficult crimes to prosecute. Victims may fear cooperating with law enforcement, physical evidence may be sparse, and some of the most frightening and degrading acts of abuse may not fit neatly into Kansas statutes.
Domestic violence offenders are frequently charged and convicted with crimes other than domestic battery, like telephone harassment, stalking and violations of protective orders. In complex cases, Kansas statutes are tools for prosecutors seeking to hold abusers accountable and protect the public. The spousal exemption removes sexual battery as a possible tool.
“The current law is especially harmful to individuals who are sexually battered as part of an abusive marriage,” said Michelle McCormick, program director of the YWCA Center for Safety and Empowerment in her testimony before the house Committee on Judiciary last session. “Acts of sexual violence are perpetrated routinely by those who physically abuse their partners, to gain and maintain domination and control in the relationship.”
Fears of overzealous prosecutions have not been realized in other states where spousal exemptions have been removed. There is a pressing need to make Kansas laws reflect our values on this issue.