The Ridicule of Consent in Marital Rape (An Excerpt)

By Katherine Swartwood
Katie is a second year graduate student in the Women’s History Program at Sarah Lawrence College.

This piece is an edited excerpt from her thesis, which will be completed in May 2019. Portions of this work have been removed for understanding and clarity; it may fully reflect the completed thesis.

Trigger warning: this blog post may contain triggering content including sexual assault, rape, and violence against women.



Lenore Walker, an activists and scholar working on battered women, later began serving Colorado as a psychologist focused on working with courts to provide expert testimony for women who killed their husbands after suffering from Battered Women’s Syndrome. [1]  In 1980, she wrote a letter to Laura X, the director of the National Clearinghouse for Marital Rape. In this letter, Walker described a conversation she had with a Montana State Senator, Patricia Regan, involving a piece of legislation she introduced in Montana regarding marital rape as well as three other issues concerning marriage and battered women. According to Walker, Senator Regan noticed her male colleagues disapproved of legislation completely criminalizing marital rape, so Reagan tried to appeal to them by compromising. Regan altered the legislation to make marital rape illegal only in instances where couples lived apart or separated.

As legislators and legal experts began studying marital rape, they often allowed marital rape myths to permeate their opinions and actions. For instance, in Kansas, a 1982, Special Committee on the Judiciary met to evaluate their state statutes regarding rape. On the topic of marital rape, the committee concluded that while they should not allow a total marital rape exemption, they should limit the criminalization to include only separated couples. This was because, “The Committee believes that rape does occur in marriage, but that it is most likely to occur when marital discord is evident and the parties are estranged.”[3] The suggestion by the Committee shows that while legislators could admit that marital rape occurred, they were reluctant to acknowledge that it could happen in any kind of relationship. The language employed by the Kansas legislators demonstrates how marital rape could have been seen as a type of revenge from husbands against their estranged wives. Instead, most believed that charges of marital rape portrayed vindictive wives’ attempts at revenge against their husbands.

Rather than understanding spousal rape as something that could and did happen in marriages that appeared happy and successful from the outside, these legislators asserted that it most often took place in estranged marriages.

Furthermore, by stating that marital rape does occur, but solely focusing on estranged marriages, the Kansas legislators disregarded women in their own state who experienced marital rape if divorce proceedings had not begun. To them, these women did not matter enough because these women were not raped enough. For many legislators across the country, marital rape myths like this impeded the State’s ability to produce comprehensive legislation to protect wives in their own homes. Other prevalent myths at the time included: the idea that marital rape was not as serious as other types of rape, spousal rape fell under marital privacy and the government should not step in, women claim marital rape to enact revenge on the husband, and marital rape simply does not exist.

The ignorance displayed by the Kansas legislator was not unique. Returning to Senator Regan in Montana, we can see how male politicians disregarded issues like marital rape. In order to retaliate against Senator Regan’s proposed legislation, some unidentified male legislators crafted a “Consent Agreement” for their wives. The agreement states in capital letters,

DUE TO A SITUATION IN OREGON WHERE A MAN IS ON TRIAL FOR RAPING HIS WIFE, AND ANOTHER MAN IS CHARGED WITH RAPE OF HIS WIFE, THE FOLLOWING “CONSENT AGREEMENT” IS FURNISHED TO MONTANA MALES AS A PUBLIC SERVICE. IT IS RECOMMENDED THAT NO SEXUAL CONTACT BE MADE UNTIL THE FOLLOWING FORM IS FILLED OUT AND SIGNED. REMEMBER,[4] SHE MAY BE WILLING TONIGHT, BUT TOMORROW YOU  MAY BE CHARGED WITH RAPE!!![5]

It also asked the wife to check one of four options for consent with sex with her husband: “Beg, Ask, Agree, Grudgingly agree (please pull my nightgown down when you are through)”[6] At the bottom of the form, it states that more copies can be found with Senator Regan. These were then distributed to all of the legislators in order to mock Regan’s attempt to outlaw marital rape. Under the condition that couples must be living separately for marital rape to occur, one male legislature even commented that since their profession required most of the male legislators to have separate living arrangements in the capital city, they could be found guilty of such misconduct. This joke alone alludes to the fact men hardly evaluated their behavior towards their wives. Furthermore, it shows how men whose female constitutes charged their representatives with the responsibly of advocating on their behalf, failed to even respect them.

Walker states in the letter to Laura X that this Consent Agreement “…was probably responsible for winning the vote to pass the marital rape legislation in Montana…”[7] and that following the distribution of the form and the male legislator’s “plea” for Regan to understand how their circumstances (living separately from their wives during session) meant they were vulnerable to the proposed law. “Everyone laughed, embarrassed a bit and then [were] shamed into voting to pass the bill.”[8] These two comments made by Walker assume that without these interruptions, the marital rape bill in Montana would have failed. Thus, these male legislators, in an effort to undermine the authority of a female colleague and mock an important piece of a legislation dealing with women’s autonomy and a right to make decisions about her own sex life, actually pushed the bill into passing.

Should marital rape activist have be thankful for this “humorous consent form”[9] as Walker describes it? It appears that without it, the legislation most likely would not have passed, but is it fair to put the victory on the shoulders of misogynistic men who were more apt to poke fun at rape, rather than try to educate themselves about this traumatic crime? Regan’s male colleagues forced her to turn a situation meant to humiliate and mock her into a victory for women in Montana. Walker asserts that Regan used her “great sense of humor”[10] to defuse the situation. While this could have been a show of Regan’s humor, I find it more likely to be a display of resilience. Regan understood that she was operating in a boy’s club in politics and knew that she could not display any sign of backing down. It is important to emphasize that Regan worked hard for this victory, though it did come at the cost of many women in sexually violent marriages (with the requirement that only separating couples could charge one another with rape). Misplacing the men who created this document at the front of this achievement, ignores the efforts Regan made as a state legislator to not only change the law in Montana, but also the culture of sexism among her male colleagues.

The consent form represents much more than just a “humorous” experience in the legislature. It showcases how male legislators in Montana in the late 1970s and early 1980s disrespected not only their female colleagues, but also their constitutes and even their own wives. These men found it appropriate to mock and humiliate a bill put forth by a female Senator because as men, they did not understand the reality of marital rape. They did not know what it meant to be coerced or forced into sex with their partner, nor understand the trauma that rape victims experience. No, to these men charged with setting the laws in their state, their wives were there for the taking.

As the form continues, it states, “This is a ‘ONE TIME AGREEMENT.’ Any sexual contact other than the above time and date will require a new agreement.”[13] Here the legislators show that they subscribe to Hale’s doctrine of implied consent in marriage. These men mocked the idea that women, especially their wives, could chose not to consent to sex from one time to the next. They saw their marriage as an opportunity to demand sex whenever they wanted. This is especially made clear by the inclusion of “Grudgingly agree (please pull my nightgown down when you are through)”[14] as an option of agreement for the wife on the form. The male legislators obviously understood that they have coerced their wives into unwanted sex. Sure the men frame this as an exasperated acceptance by their wives and it seems innocent enough, but again, they are ignoring the fact that not all women were afforded an opportunity to even “grudgingly” agree to sex. For some women in America, husbands did not stop to ask, they demanded, whether through threats or through violence.

This leads us to examine what is missing from the consent form, notably that it does not provide an option for a wife to deny sex with her husband. Based on the format of the Consent Agreement this makes sense. The form is crafted in a way that the wife must fill out the form by herself regarding the sex that is about to take place. This is done without the inclusion of the husband, as he does not have to mark or sign anything, as the wife was required. The first two of the four categories of sexual consent are for when the wife is requesting sex: “Beg” and “Ask,” while the next two presume a response to the husband’s request for sex. Therefore, all the power lies in her hands. But why is it that the wife is the only one meant to fill out the form? Why does the husband not require a form to fill out when he request sex from his wife? Categories of request could read: “Beg,” “Ask,” “Demand,” “Force.”

The husband’s lack of participation on the consent form shows that these men thought issues of consent laid with the woman. Thus this form was not about holding a husband liable for his actions with or against his wife; no, this form was meant to hold a woman accountable for agreeing to sex with her husband. This was so she could not later revoke her consent in revenge against her husband, which was a common myth used by critics of the criminalization of marital rape. The creators of the consent form wanted to demonstrate that women are fickle in matters of consent and they, the husband, should not fall victim to this. In order to protect a man’s reputation, he should have his wife put in writing that she consents to sex, otherwise, how would he be able to tell when she does and does not want to have sex? These men wanted to warn men that they should protect themselves against a potential false allegation of marital rape, rather than actually ask for their wife’s consent…

Sources

[1] “Specializing in Forensic Evaluations and Expert Testimony.” Walker and Associates. http://www.drlenoreewalker.com/walker-associates/

[2] Diana Russell, Rape in Marriage. 2nd ed. (Bloomington: Indiana University Press, 1982, 1990), xix.

[3] “Committee Report” Special Committee on Judiciary, 1982.

[4] Original emphasis.

[5]  “Consent Agreement” Montana State Legislators, 1980.

[6] “Consent Agreement” Montana State Legislators, 1979.

[7] Walker, Letter to Laura X, 1980.

[8] Walker, Letter to Laura X, 1980.

[9] Walker, Letter to Laura X, 1980.

[10] Walker, “Letter to Laura X,” 1980.

[11] Walker, “Letter to Laura X,” 1980.

[12] I found no other information regarding the Consent Agreement. Only one other scholar discusses it, and that is Diana Russell in the new introduction to her book Rape in Marriage, which was published in 1990. She claims women working in the women’s center at the University of Montana. Therefore, I have found no evidence of Regan directly commenting on the form and what it meant to her.

[13] “Consent Agreement” Montana State Legislators, 1980.

[14] “Consent Agreement” Montana State Legislators, 1980. 

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