Spousal rape debate renewed

Appeal seeks lighter penalty

By Susie Steckner
and Jodie Snyder
The Arizona Republic
Aug. 8, 1999

Leo Thomas got five years for raping his girlfriend, but he's appealing the sentence on the grounds that the two were living like husband and wife.

In other words, Thomas claims, it was really like raping his wife, which under Arizona law is a minor offense.

And at least one judge agrees with him.

Thomas' defense, which has angered victims advocates, is based on the fact that rape suspects in Arizona and most other states can receive dramatically lighter penalties if they and their victims share a marriage license.

"Whenever we mention this, people just have disbelief," said Christina Wildlake, head of the newly formed Arizona Sexual Assault Network.

"It is time to relook at the law."

A decade ago in Arizona, it wasn't a crime to rape your spouse. Today, a first-time spousal rape is a minor felony, considered as serious as spitting on someone or slashing car tires.

In comparison, people convicted of non-spousal rape must go to prison, sometimes for long periods.

Thomas' victim, whom The Republic is not identifying, said she was stunned to learn of the difference.

"I just can't believe that you can enter a relationship with somebody and the crime is OK," the 38-year-old Valley woman said. "It's like, whatever happens in your house is nobody's business."

But some family rights activists express concern about stiffening spousal rape laws. They say spouses too often claim abuse to gain leverage in divorce or child-custody proceedings.

"This is just treacherous water," said Lesley Wimberly, a Tucson legal consultant who specializes in cases of false abuse allegations. "We need to be very careful where we walk.

"You want to protect the victim. But at the same time, you don't want to create a new set of victims."

Outraged by inequity

Maureen Jones-Ryan, who fought to get Arizona's current law on the books, is outraged by the Thomas case and by the inequity.

"A rape is a rape is a rape," said Jones-Ryan, director of the Sexual Assault Recovery Institute in Phoenix. "There should be no discrimination because of the relationship."

Thomas, who declined requests for an interview through his attorney, denies in court documents that he committed rape. However, he also claims that he and his girlfriend were all but married at the time of the incident and, thus, his sentence should be reviewed.

Maricopa County Superior Court Judge Barbara Jarrett, who was unavailable for comment, called his punishment "clearly excessive" in court documents.

She granted Thomas' request to petition the state Board of Executive Clemency to commute his sentence.

Advocates seeking to change the law say it may be an uphill battle because it also means changing public perceptions.

"There was a time that women were considered chattel, they were property," said Ernie Garfield, a Valley businessman who serves on Gov. Jane Hull's Commission on Violence Against Women.

"I tell you, we haven't come that far."

Married men were exempt

Until 1976, no state considered it a crime for a husband to rape his wife because married men were once exempted.

Today, it's a crime to some degree in every state. Eighteen states and the District of Columbia have abolished the exemption, according to the National Clearinghouse on Marital and Date Rape in California.

In Arizona, it became a crime to rape or sexually assault your spouse in 1988, primarily at the urging of Jones-Ryan. The bill was sponsored by former Sen. Carolyn Walker.

"She was the only one of the many people I approached over three or four years who was willing to stick her neck out and take it on," Jones-Ryan said.

Experts say there is a popular misconception that the most common type of rape is an attack by a stranger. In fact, they say, the perpetrator is more likely to be someone known to the victim.

The prevalence of spousal rape is difficult to track, experts say. Domestic violence in general is among the most underreported crimes, and spouses may not understand that non-consensual sex is a crime.

One 1992 study, by the National Victim Center in Virginia, found that 10 percent of all sexual assault cases reported by women involved a husband or ex-husband.

According to the police report in the Thomas case, the victim was awakened by Thomas on April 27 of last year and confronted about an ex-boyfriend.

After threatening her, then apologizing, Thomas asked to have sex. But the victim refused. Then, according to the report, Thomas said, "If you're already going to report it (to police), you might as well report it for rape, also."

Thomas strongly disputed the allegations, saying that his girlfriend attacked him and that they later had consensual sex. In February, however, a jury convicted him of sexual assault, which carries mandatory prison time ranging from 5.25 to 14 years.

Thomas' attorney at the time, Thomas Klobas, argued that the Legislature didn't intend for offenders like Thomas to receive such harsh punishment. Rather, lawmakers envisioned the "classic situation of a violent and unexpected confrontation between strangers in which the victim was surprised, overpowered, physically injured and abandoned."

Ruling notes record

Thomas was sentenced to 5.25 years. A month later, Jarrett's ruling paved the way for him to appeal that sentence to the Board of Executive Clemency.

In her order, Jarrett said the offense involved non-consensual sex, but noted that Thomas didn't physically harm his girlfriend, has no prior felony convictions, is a father who once had sole custody of four children, and was a longtime employee of a Valley company.

"While the court recognizes that the intent of the Legislature is to treat sexual offenders harshly," Jarrett wrote, "the mandatory sentencing provisions seem unduly harsh in situations involving domestic partners such as this."

Alex Gonzalez, Thomas' current attorney, said that marital rape law fits this case.

"Why shouldn't it apply?" he asked. "These people were living together as husband and wife, had been for several years, had purchased a house together . . . had engaged in sexual relations several times prior to this incident."

When Arizona's marital rape law was passed, some lawmakers expressed concern that it could lead to abuses. One wondered whether it would allow someone to gain leverage in divorce proceedings.

There is uncertainty

Garfield, a staunch supporter of sexual assault victims, understands such concerns.

"There's the uncertainty of whether it is rape or not rape," he said.

"It's just like abuse. Is it being used by a spouse as a way of winning over child custody? Is it something that is done out of rage or hostility in a divorce?"

Dean Tong, a nationally known family rights activist and author, calls that the "abuse excuse."

"She can use the abuse excuse as a weapon, as a means to get the upper hand, if you will," he said. "That ingredient should be a major red flag for the Legislature."

Meanwhile, Maricopa County prosecutor Cindi Nannetti, chief of the sex crimes unit, said cases of spousal rape are difficult to prove, in part, because there are typically no witnesses and the couple are living together. What's more, she said, it's hard for jurors to understand that a spouse can be raped.

Even victims themselves don't always understand it, Nannetti said.

"They're surprised it's a crime."

Spouses who rape can get six months to 1 1/2 years in prison. A judge also can reduce the charge to a misdemeanor, with probation and counseling. The spouse must also register as a sex offender.

If the spouse rapes a second time, the penalties include mandatory prison time.

The spousal rape law applies only if the couple are married and living under the same roof. If they are in separate households, the rape is considered more serious.

Meanwhile, a first offense for non-spousal rape carries mandatory prison time ranging from 5.25 to 14 years. Offenders also must register as sex offenders.

Other abuse likely

Dr. Mary Koss, a public-health professor at the University of Arizona and a nationally known expert on rape, said it's dangerous to portray a rape such as Thomas' as a one-time aberration in a basically stable relationship.

Marital rape most likely occurs with other mistreatments such as verbal abuse, psychological abuse and physical abuse, Koss said.

Thomas' victim alleges that the rape capped several years of physical and verbal abuse.

Koss described spousal rapes as "power crimes."

"This is an attempt to get the rights they (men) feel they deserve but are not getting," she said. "They never see what they are doing as rape. It is within their legitimate rights."

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Susie Steckner can be reached at (602) 444-7129 or at susie.steckner@pni.com via e-mail.

Jodie Snyder can be reached at (602) 444-8667 or at jodie.snyder@pni.com via e-mail.