Editor's Note: (Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author. )
(CNN) A high-level adviser and special counsel to presidential candidate Donald Trump is now apologizing for suggesting during an interview that one cannot rape one's spouse.
Michael Cohen made the now-repudiated comment while defending the Republican presidential candidate from an allegation from Ivana Trump during divorce proceedings in the early 1990s -- a statement that even Ivana Trump herself is now backing away from.
It's true that as a lawyer, Cohen should have known better. Moreover, since the interview topic was spousal rape, he probably should have at least Googled the legal issue before making a statement about it. He didn't. He was wrong, and he's apologized. But this incident uncovers an area of divorce and criminal law about which civilians and lawyers alike are still not clear.
Indeed, had Michael Cohen made that same statement in the 17th century, it would be accurate. As jurist Matthew Hale wrote:
"For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."
This was the beginning of the "marital exemption," which provided immunity to a man who otherwise forcibly raped his wife. Before you dismiss that as the primitive thought of a civilization that considered bloodletting a kind of preventative health care, it wasn't too long ago that the marital exemption was alive and unwell in the United States.
Just a few decades back, American courts upheld the exemption, observing it was "rooted in the ancient concepts of a wife as a chattel (property) and the inviolability of the husband's supreme role in a marriage relationship." As recently as 2013, the state of Washington had a marital exemption for third-degree rape, and some states today still treat marital rape differently in some way than non-marital rape.
So while the statement "a man cannot rape his wife" is categorically and horrifyingly wrong, it was a correct statement not too long ago. Had he said "in some jurisdictions a man's rape of his spouse is treated differently than his rape of a non-spouse," that would have been legally accurate. Frighteningly, Cohen's statement was, in a way, too close for comfort.
If the evolution of criminal law in the area of spousal rape may be considered plodding at best, then the law of divorce is downright confounding. Criminal law is at least moving toward treating sex crimes without a marital distinction. Meanwhile, divorce laws in the United States view sex as part of the obligations of marriage.
Of course, divorce law is a totally different kind of law than criminal law. Criminal law punishes wrongs against society, and rape is among our most serious crimes. On the other hand, divorce law may consider withholding sex a ground for divorce, or inability to have sex as grounds for annulment. This is hardly the same as suggesting spousal rape is appropriate. But at minimum, the law sends some mixed signals.
Refusing sex is called "constructive abandonment" and it is a ground for divorce. It is commonly defined as the refusal by a defendant spouse to engage in sexual relations for at least a year, where the refusal is "unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations."
Similarly, impotency, or inability to have sex, can legally dissolve a marriage. Lying about the ability or intent to have sex is grounds for an annulment. Of course, people fully capable of sex or procreation might simply decide not to, so courts have also granted annulments based on fraud where, for example, a person says they will be willing to have sex, but plans to renege. Courts have granted annulment where the impotence was medical -- even when the medical reason was based upon a psychological "block" against sex suffered by the wife.
Again, withholding sex might support a divorce or annulment action, but it certainly doesn't suggest that women are obligated to submit to violent rape.
But the societal message is still somewhat conflicting: Legally, divorce law suggests that a wife is obligated on some level to have consensual sex. How can someone be legally obligated to do something consensual? But criminal law is clear in all 50 states: nonconsensual sex is rape, and rape does not require any violence, just the absence of consent. In this area, criminal and divorce law are somewhat conflicting. In neither area should there be any suggestion that having sex must be compulsory.
Spousal rape laws and divorce law are examples of how different areas of law develop in independent -- and possibly conflicting -- ways. Cohen's statement was flat-out wrong, but before we pat ourselves on the legislative back -- it hasn't been a wrong statement for very long in our history.
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