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  • James R. Wronko

Client Charged With Rape of His Wife

A client of mine was charged with sexual assault for forcing his wife to engage in sexual intercourse. The alleged victim claimed he forced her to engage in sex while their was divorce was pending.

After a month long trial, the jury could not reach a decision and a mistrial was declared. Interestingly enough, Harvey Weinstein was convicted of sex crimes, while this jury was deliberating.

According to Monica Steiner, “Rape- any nonconsensual sexual intercourse- between non-spouses has always been illegal. However, until 1975, every state had a “marital exemption” that allowed a husband to rape his wife without fear of legal consequences. By 1993, largely in response to the women’s rights and equality movement, every state and the District of Columbia had passed laws against marital rape.”

In the case I just tried, the wife admitted that she had been engaged in monthly consensual sex with her husband from February through October. A divorce was being litigated the entire time. However, she asserted that in November, her ex husband forced her to engage in sexual intercourse. She obtained a Final Restraining Order and criminal charges were pressed and my client was jailed for three months. He was only released from jail, after I filed a motion for his release based on the wife’s testimony at the Final Restraining Order hearing that they had consensual sex for the preceding 9 months. My client testified that on the night in question, he did engage in consensual sex and did not force his wife. The police were called after their son became aware that my client, his father, was in the house. He was located half naked in the bedroom closet, when he had hid so as not to be observed naked by his son and mother-in-law who were both present in the house.

A sexual assault nurse examiner (SANE) had obtained samples from the breasts, vagina and related areas of the wife. A State police forensic DNA scientist testified that my client’s DNA was located on the wife’s breast. This was consistent with his story that they engaged in consensual sex. My client was questioned by police, and when he ascertained that they did not believe him and had accepted his wife’s story that sex was forced, he invoked his rights under Miranda and the Sixth Amendment to the U.S. Constitution and requested an attorney. The trial court did allow the jury to learn that he had invoked his constitutional rights to an attorney.

At trial, both my client and his now ex-wife testified as to the events surrounding the sexual acts that night. My client testified he believed it was consensual and noted two weeks earlier his ex-wife had requested that he buy her Victoria’s Secret underwear.

The jury deliberated for 5 days but could not reach a verdict. The case will retried.

The case unfolded in the atmosphere of the me too movement as well as the trial of Harvey Weinstein.

The topic of Marital Rape and Forced Sex has been addressed by Marie Hartwell-Walker, Ed.D., and advice columnist for Psych Central. She opines that being married doesn’t change the social rules. Just because a woman said “I do” to marriage doesn’t mean that she has said “I do” to sex whenever, wherever, and however her husband wants it. She further stated that wives do not belong to their husbands as though they were property. Sex is not a “right” that goes with marriage. It is not a wife’s duty. A woman does not give up her right to say yes or no the day she gets married. Sex should be based on respect, equality, consent, caring and clear communication.

While Ms. Hartwell-Walker is clearly correct, the question and difficult part is determining whether a wife is a victim or a person who is taken advantage of the environment created by the “me too” movement.

In the case that I just tried wherein the jury could not reach a verdict, the wife, by making these accusations, was able to prevent my client from seeing or even talking to his children for the over 15 months and has obtained a huge advantage in the divorce. She admitted that she had been engaging in consensual sexual relations, including oral and vaginal sex, in order to try and get her husband to give her a favorable divorce settlement and agree to not have the children on overnight visits. She has clearly succeeded as a result of criminal charges, being filed at least until the next trial concludes.

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