Comment by throwaway0a5e | Hacker News Reader

Comment by throwaway0a5e | Hacker News Reader

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Meta rant:

Every day there's probably a few thousand morons on the internet clutching their pearls about how you theoretically don't need car insurance in a few states despite the reality that anyone who can afford to opt out is better served by buying insurance and the only people who opt out have very, very, niche use cases. You are using a a similar presentation of the truth but not the whole truth in your comment.

States have widely varying laws. Just because something isn't specifically illegal doesn't mean some existing clause wasn't used to prosecute it. If a state doesn't have a lot of frequency of some event it will likely not develop specific laws, it will just use existing laws and precedents in weird ways. For example CA has all sorts of laws about wells and water in order to mediate disputes. Arkansas for example simply doesn't have those laws because those issues aren't as common and the volume is low enough for those issues to go through different parts of the legal system without causing much problem.

Saying X wasn't illegal in every state until Y year is about as meaningful as saying Z is known to the state of CA to cause cancer for any value of X and Y you could pick.

Marital rape didn't start to become illegal until the late 70's. It wasn't universal until the early 90's. So you can pick some date in between and then use that date to draw the obvious conclusion that our deeply mysogynistic society has serious issues with sexuality and gender.

I am not familiar with the history of American laws. You and the comment you are replying to are saying different things using the same terminology, so I am confused which one of you is correct on history.

The person you are replying to is saying marital sexual assault did not have its own laws. Rather, it was prosecuted general sexual assault laws.

You are saying marital sexual assault did not have its own laws and it was NOT prosecuted under general sexual assault laws. For example, because the sexual assault laws had an exception saying the law does not apply if the perpetrator is married to the victim.

So, which one is correct? Did the law before 70's or 90's specifically exclude marital sexual assault? Or was it neutral and used for all sexual assaults, both within and without marriage?

We sometimes see laws covering things that are already covered, not changing things, but merely making them more explicit. In more recent memory, once can remember the debate surrounding Born-Alive Abortion Survivors Protection Act, which essentially aimed to criminalize something that was already criminalized by the existing statutes.

"You are saying marital sexual assault did not have its own laws and it was NOT prosecuted under general sexual assault laws."

I am saying this because it was a fact in the United States. Laws specifically and unambiguously stated that rape was not a crime if the women was married to the man (and yes, it was gendered in the law). Hence the need for the laws to be changed starting in the late 1970's.

Some background: https://nortontooby.com/node/13251

What part of your source are we supposed to look at?

The first result of searching for the word `wife` in the linked page:

See, e.g., Black’s Law Dictionary (6th ed.1990) (defining rape as the ‘act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions’).”

Not sure it proves what the GP was saying, though. The second result is similar, and seems to be referencing an actual law.

Norms changed over the time period in question greatly reducing the need for physical violence or immediate threat thereof to prosecute someone for rape or a rape adjacent crime.

Marital sexual assault was generally prosecuted under domestic violence laws (which themselves became broader and stricter over time) on an as-needed basis but the required fact pattern for prosecution in 1965 or so was a higher bar in general than the standard set by the laws by 1990 or so. Furthermore, plea bargains rose in popularity over the same time period and DV went from a non-issue misdemeanor to a serious problem on your record over the same time period so examining conviction stats for various crimes is difficult.

> plea bargains rose in popularity over the same time period

That's interesting. I assumed plea bargains were always this popular. Any idea why they rose in popularity during this specific period?

>I assumed plea bargains were always this popular. Any idea why they rose in popularity during this specific period?

A variety of reasons but mandatory minimums and stiffer sentencing in general (both made popular by the war on drugs) are the bulk of the reason.

When your lawyer could say in confidence that based on the fact pattern you're all but assured sentence on the order of a lesser crime that more correctly fits the fact pattern you're more likely to go to court and try and clear your name. When you're guaranteed a minimum sentence should you lose taking the bargain seems more reasonable.

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