Almost immediately after former Massachusetts Gov. Deval Patrick entered the presidential race last week, he started facing questions about his 2014 decision to push out two officials who had tried to put his brother-in-law on the state’s sex offender registry.

The backstory: According to a complaint filed by one of the officials, in 1993, Bernard Sigh pleaded guilty under California’s spousal rape law to using force to rape his then-wife, Patrick’s sister. He served four months in prison, reconciled with his wife, and moved with her to Massachusetts in 1995. The following year, the state enacted a law requiring anyone convicted of a sex offense in Massachusetts or “like” offenses in other states to register. Sigh didn’t submit his name to the registry. His conviction remained largely unknown until Patrick ran for governor in 2006, when it was unearthed in what was widely viewed as an attempt at campaign mudslinging.

Patrick won anyway, and in the following months the Massachusetts Sex Offender Registry Board examined whether Sigh should have been on the list. Sigh argued that he shouldn’t be required to register because California’ s spousal rape law was not similar enough to Massachusetts’ rape law, which did not distinguish between offenses that occur in and outside of marriage. A registry officer agreed, but the chair and the executive director of the board unsuccessfully tried to overturn the ruling. Seven years later, shortly before he left office, Patrick ousted the two women from their positions. He explained in a press conference that his decision traced back to them “inappropriately interfering” with Sigh’s case years earlier.

In a recent statement to the Washington Post, Patrick defended his decision to push out the two officials as an attempt to hold them accountable, and he characterized the episode as a painful personal matter best “left out of the public eye.” But the controversy over his actions has glossed over the ruling at the heart of the matter—and the idea that spousal rape is legally different than other kinds of rape. 

That distinction is an old one. For most of American history, rape within marriage wasn’t considered rape. The idea traces back to the writings of Sir Matthew Hale, an 17th-century English jurist who theorized that wives give “irrevocable consent” to their husbands. “By their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband which she cannot retract,” Hale wrote. For centuries, the American legal system nodded along with this notion. And the logic behind it persists: In 2015, Donald Trump’s then-fixer Michael Cohen told reporters, “By the very definition, you can’t rape your spouse.”

Yet in the 1970s and 1980s, women’s rights activism, court rulings, and a growing body of research into the prevalence of marital rape led state legislatures to expand their definitions of sexual assault to include incidents between spouses. By 1993, when Sigh was convicted, every state had laws classifying spousal rape as a crime in some form.

But many states still treat spousal rape as different from other rapes, providing exemptions for spouses depending on the facts of the case and the severity of the charge, says Patti Powers, a former Washington sex crimes prosecutor and attorney advisor at AEquitas, a nonprofit that educates prosecutors about gender-based violence. Some laws consider spousal rape to be rape only if it involves physical force—a loophole that overlooks incidents in which the victim was drugged, unconscious, or otherwise unable to consent. Some states have exemptions for spouses in their statutory rape laws, or in laws prohibiting sexual contact between people with a “supervisory relationship,” such as therapists and patients, or teachers and students.

Many states still treat spousal rape differently

Four decades after the start of the movement to criminalize spousal rape, states are still updating their statutes. This year, Minnesota eliminated its marital exemption for rape cases in which the victim is incapacitated. Bills to remove martial exemptions in Ohio and Maryland both died in committee. Meanwhile, states that specifically criminalize spousal rape treat the crime differently in some respects: California requires people convicted under its law to register as sex offenders, but only if they used “force or violence” and were sentenced to state prison.

The particulars of Sigh’s spousal rape conviction in 1993 and subsequent move to Massachusetts allowed him to avoid registering as a sex offender. No longer: In June, a Massachusetts jury convicted Sigh of rape, kidnapping, stalking, witness intimidation, and other crimes in connection with sexually assaulting his estranged wife in December 2017. 

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