Victims with Unique Consideration

Spousal Rape

A marriage license is not a license to commit sexual violence.

A marriage license is not a license to commit sexual violence. Domestic and sexual violence are inextricably linked.  Within an intimate partner relationship, abusers frequently use sexual abuse as a tool to maintain power and control over their spouse or significant other.

In many jurisdictions, marriage is not a defense to the crime of sexual assault. In these jurisdictions, a spouse may be criminally prosecuted for the crime of sexual assault for any non-consensual sexual contact with his wife.  Even if a jurisdiction excludes marital or spousal rape from its sexual assault statute, these crimes can also be tried under the tribe’s domestic violence statute. Tribal law enforcement should investigate crimes of sexual violence when the victim and perpetrator are legally married just as thoroughly and professionally as when the crime was committed outside the bounds of a legal marriage.
Because marital or spousal rape is also a crime of domestic violence, tribes that are compliant with the Violence Against Women Reauthorization Act of 2013 have the inherent authority to prosecute both Indian and non-Indian perpetrators.

Furthermore, the impact of spousal or marital rape upon the victim cannot be understated. So-called “stranger rape” or “acquaintance rape” is a highly traumatic event for victims with long-term repercussions.

Sexual violence within a marriage is just as or even more traumatic for American Indian/Alaska Native victims because:

  • The sexual violence, typically, is on-going and not an isolated, one-time event.
  • The sexual violence is part of a pattern of abuse that permeates every aspect of the victim’s home life.
  • Victims may not recognize sexual violence within a marriage as “rape” and thus may not report the crime or seek services
  • There may be family, community, and/or religious pressure to stay with the perpetrator of spousal rape.
  • The victim may be financially dependent upon the perpetrator, have children with the perpetrator, and it may otherwise be difficult for her to leave.

Civil legal services providers and healthcare professionals should screen each and every client for domestic as well as sexual violence. Although it may be uncomfortable for service providers (as well as for American Indian/Alaska Native victims) to discuss sexual violence within a marriage, eliciting that information can be the opening for increasing health, safety, security, and justice for the victim.

Sexual violence within a marriage can be used to obtain a protection order and can also be used as grounds for divorce in jurisdictions that require a showing of fault.  Similar to domestic violence, evidence of sexual violence (including forcing a victim to engage in sexual acts she does not wish to perform) in divorce and dissolution proceedings can be used to argue for:

  • spousal maintenance ("alimony")
  • restitution for expenses related to health assistance, healthcare, ceremonial expenses, and pain and suffering related to the violence
  • sole custody of the children for the victim
  • third party custody exchanges during visitation.

Spousal Rape

Contact NICCSA

PO Box: 2100 E Speedway Blvd, Box 40805, Tucson, AZ 85719

Phone: (520) 623-8192
Fax: (520) 623-8246

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*NICCSA is a project of the Southwest Center for Law and Policy ( This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.