On Monday night, The Daily Beast reported that Ivana Trump, former wife of presidential candidate Donald, had accused her ex-husband of rape in a deposition during their divorce proceedings. In an interview for the story, Trump's attorney insisted that there is no such thing as rape within a marriage: “You cannot rape your spouse," said Michael Cohen. "And there’s very clear case law.”
Cohen was wrong about the law. (He has apologized, though it's not clear for which part of his comments, and Ivana Trump released a statement reading in part, "The story is totally without merit.")
But while Cohen may have been simply misinformed, there is a long history of conservative opposition to the very concept of marital rape, which is a fairly recent concept in law. Recognizing that rape occurs within marriage requires believing that husbands don't have automatic sexual rights over their wives' bodies.
Conservative activist Phyllis Schlafly has been a Republican delegate to eight national conventions, including in 2012. She ran for Congress on the Republican ticket, twice. She also has repeatedly said she doesn't believe that marital rape exists.
"I think that when you get married you have consented to sex," she said in a 2008 interview. "That's what marriage is all about, I don't know if maybe these girls missed sex ed."
She added, "When it gets down to calling it rape though, it isn't rape, it's a he said-she said where it's just too easy to lie about it ... Feminists, if they get tired of a husband or if they want to fight over child custody, they can make an accusation of marital rape and they want that to be there, available to them."
In 1981, then-Senator Joe Biden held a hearing on the marital rape exception. Sen. Jeremiah Denton, Republican of Alabama, replied, "Damn it, when you get married, you kind of expect you're going to get a little sex.”
When repealing the exception for rape within a marriage made its way through some state legislators, legislators had many questions. In 2014, Virginia state law maker Richard "Dick" Black, a Republican, was running for a seat in the U.S. Congress. Mother Jones reported that in 2002, the Virginia legislature had been considering revising its marital rape laws. An amendment was introduced saying marital rape could only be prosecuted if "at the time of the alleged offense, the spouses were living separate and apart, or the defendant caused bodily injury to the spouse by the use of force or violence," drastically narrowing the scope of the anti-rape law.
By way of explanation, Black, a former military prosecutor who clearly understood the way criminal law works, said, "I don't know how on Earth you could validly get a conviction in a husband-wife rape when they're living together, sleeping in the same bed, she's in a nightie and so forth. There's no injury, there's no separation, or anything.” Black eventually dropped out of the race, but now serves in the Virginia state senate. He will face a female Democrat backed by EMILY's List in his reelection bid next year.
Most people remember failed Missouri Senate candidate and former U.S. Rep. Todd Akin for his pronouncement that women cannot get pregnant from "legitimate rape." But as a state legislator, Akin also showed himself to be skeptical of the concept of marital rape. He worried that the law would be used "in a real messy divorce as a tool and a legal weapon to beat up on the husband." He did eventually vote for it.
Some legislators cited the right to privacy in opposing the criminalization of marital rape. In 1990, when South Carolina debated spousal rape, Republican Rep. Charlie Sharpe declared, “We need to stay out of a man’s bedroom.”