Criminal Law

Extra Punishment in Texas for Rape if You're Married—and for Rape of Married People

This isn't an enhancement for assaults on your spouse -- it's an enhancement for assaults on anyone, if you happen to be married.


Texas law provides:

[Sexual assault, which includes forcible rape and statutory rape,] is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 ["bigamy"].

It seems broadly agreed that the purpose of the law was, "to provide higher penalties for polygamists 'who sexually assault their purported spouses.'" But read literally, the law enhances the punishment for sexual assault by any married person, regardless of the assaulter's relationship with the victim (except when the victim is the assaulter's spouse), simply because married people can't marry anyone else.

And indeed, in Estes v. State (decided yesterday by the Texas Court of Criminal Appeals), prosecutors, judges, and a jury applied the law precisely in this way: Estes' conviction for having sex with an under-16-year-old friend of his son's was upgraded to a first-degree felony just because he was married. An appellate court concluded that there was no rational basis for punishing married abusers more than unmarried abusers, but the majority on the Court of Criminal Appeals—Texas's highest court for criminal cases—disagreed:

[T]he Legislature could rationally conclude [whether or not the legislators did so conclude-EV] that to be a married man or woman is to project the kind of "stability" and "safe haven" that many children find comfort in. It could rationally conclude that one who has solemnly sworn to "forsak[e] all others" might be perceived, at least by some parents, as being less likely to make sexual advances upon their children. And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.

We express no opinion whether we agree with any legislative assumption that married people are more trustworthy around children than their unmarried counterparts. Regrettably, men like Estes make such a belief difficult to hold. But, paradoxically enough, Estes's case also serves as a reminder that the public perception in this regard is all too real. We are simply unwilling, at least on this record, to discard as "irrational" the idea that marriage bestows upon its participants a certain aura of trustworthiness, specifically in regard to children. Nor do we think the Constitution precludes our Legislature from reserving, for deterrent purposes, a higher degree of punishment for those who would defile that trust by using it to sexually assault a child.

The court remanded to the court of appeals to deal with Estes' other constitutional challenges (such as that the law should be subjected to strict scrutiny, and not just the rational basis test); but it seems likely that those challenges will fail. And while this case involves statutory rape of a child by a married person, and not forcible rape, the rational basis test is so deferential that I'm sure a court could find a similar rationale for why it's rational to punish forcible rape of adults by married people more heavily than a similar act by an unmarried person.

I think this is probably the right result under the rational basis test as courts have generally applied it, and the rational basis test is the right one here. But it's just a reminder that statutes are often interpreted as they are written, and not as the drafters may have intended. We should all keep that in mind when we're asked to accept a broadly written statute on the grounds that the objectors are being too literal and that "courts and prosecutors obviously won't read it that broadly. Sometimes statutes are indeed read narrowly, in keeping with their well-known purpose; but sometimes they are not.

Note also that the statute, as read by the court in this case, wouldn't just enhance penalties for married rapists, but also when an unmarried rapist rapes a married victim. In either situation, after all, the rapist is legally barried from marrying the victim:

Sec. 25.01. BIGAMY. (a) An individual commits an offense if:
(1) he is legally married and he … purports to marry … a person other than his spouse … or
(2) he knows that a married person other than his spouse is married and he … purports to marry … that person ….

Finally, the statute as read by the court would also impose a lower penalty for a married person's raping the person's spouse (since that would still be a second-degree sexual assault) than for the married person's raping someone else (since that would be a first-degree sexual assault). I don't think this was the result of any deliberate judgment by legislators that spousal rape is a lesser crime (the statute expressly excludes consensual marital sex from the statutory rape provision, but that exclusion doesn't cover the forcible rape provision); I don't think any of this was the result of any deliberate judgment by legislators. But that appears to be the outcome.

Second-degree felonies, by the way, call for a minimum sentence of 2 years in prison and a maximum of 20; first-degree felonies, call for a minimum of 5 years and a maximum of 99.

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  1. rationally conclude that one who has solemnly sworn to “forsak[e] all others”

    However, there is no requirement in Texas to “forsake all others”. You need a license, a 72 hour waiting period, and a ceremony that can include or not include whatever swearing you want. (fun fact; there is no waiting period for a gun purchase)
    Or you can just apply for a common law license (?) and have no ceremony or solemn swearing of any kind.

    1. Since bigamy is illegal, doesn’t forsake all others just mean forsake formally marrying all others?

  2. In other news… Palestine just repealed it’s “marry your rapist” law.

  3. Another example of “rational basis” review that’s really “any post-hoc rationalization we can come up with that isn’t absolutely barking mad”. If this is really how ‘rational basis’ is going to be evaluated, then it’s past time to abandon that standard.

    1. Abandon the standard in favor of a higher standard, or no standard?

      1. All laws should get strict scrutiny.

      2. All laws should get strict scrutiny.

      3. There’s a strong argument for Matthew’s approach but I’d settle for a “rational” review that was really rational rather than merely rationalizing. Stop making excuses for the Legislature. If they had a good reason, fine – defer to their judgement. If they didn’t have a good reason or if their alleged reason was implausible, no deference. But no making up new reasons why they might, in some alternate universe, have come to the same conclusion.

        1. I’d like laws to include said rationalization, mandatory for all laws. And then let people sue to void laws whose rationalization can be proven factually wrong or inconsistent. For instance, minimum wage laws would have to state that they will increase unemployment, or they would be thrown out.

          Yes, it would take a long time to get rid of a lot of laws. There’d be dueling studies seven ways from Sunday. But just as socialism in various stripes has been shown to be a failure, so would most of those bs laws. No doubt their replacements would only be slightly modified. It would be a long haul, but better than what we have today.

          The best short-term benefit would be forcing legislators to actually write down and debate their rationalizations, and all the lobbyists having to come to grips with said rationalizations. The funnest part would be all teh extremists on both sides coming up with ever more absurd twists.

          1. (I’m speaking from my Engineering experience here) In contracts and specification documents, there is a “Scope section”. As its called, its a plain language paragraph (no lawyer legalese) stating what the document is for. Anything not expressly included is excluded. It’d be nice to have that for laws, that way regardless of how poorly its written, the scope can still limit it.

            Mind you, I’d also push to have a law that bans lawyers from trying to lawyer the scope section too.

            1. I have thoughts on de-lawyering laws too. All questions of whether a law is constitutional must be decided by juries, and if they cannot unanimously agree it’s clear, consistent, and constitutional, then it’s out with no appeals, because by definition if they can’t agree, then it’s not clear. Lawyers can prosecute and defend all they want, but it’s ordinary people on the jury they have to convince, not a judge.

              1. So one jury can agree that gay marriage is a constitutional right.
                Another jury can agree that gay marriage is unconstitutional.

                No clerk would ever know whether to sign it or not because it’s up to random chance which 12 people will decide on it? Is this for real?

        2. That’s been my view about rational basis. Find an actual reason, determine if the law actually advances that reason. I don’t think laws subject to rational basis have to significantly advance the legitimate state purpose (in other words, baby steps is fine) and it doesn’t have to be comprehensive (it can address an issue in part but not in whole), but it’s got to actually achieve its purpose and not just that some non-crazy person could conclude that it might achieve the purpose.

          1. What does it mean to ‘find the actual reason’?

            What if the legislators all took a vow of silence and marched into the legislature and passed the bill saying no words other than ‘aye’ or ‘nay’ and declining to state any view of it other than the explicit text?

            What if some of the legislators that voted ‘aye’ did so for reason X and some did for reason Y or Z. Do you evaluate all the reasons? Only the reasons that, summed up, would be a majority? What if some legislators thought it was a good idea for Y and Z but not X?

            I guess I don’t see any way to operationalize this that is not a fool’s errand.

        3. What is they basically did not state a reason. What if they were incredibly disciplined and made a conscious effort not to document or reveal any reasoning and the entire legislature stuck to that, saying absolutely nothing besides passing the law itself?

          What if different legislators had different (possibly overlapping) rationales, some of which are rational and some aren’t? Is one legislator with one rational reason enough? Some? A majority?

          I really don’t get how this is going to work in actual practice . . .

    2. If that’s your argument for abandoning rational basis review, then it’s pretty weak.

      The legislature sets punishment ranges for crimes. Why 8 years for theft and 4 years for battery? Why 1 week for a (3rd) DUI and 1 month for assault.

      Attempting to have a court do a serious inquiry here is unmoored. It’s unconnected to any kind of judicial analysis.

  4. To be honest, I’m surprised that they applied the review level challenge is considered likely to fail given that everyone seems to agree the law was motivated by anti-polygamist (anti-Morman?) animus. See e.g., the so-called travel ban cases. After all, it’s clear now that ‘having a sexual relationship with multiple people’ is Constitutionally proceed.

    1. Professor Volokh previously posted that he thought recent decisions upholding adultery laws were correctly decided on the constitutional issues. See my post below.

      Any law is motivated by animus against the sort of people who do what the law prohibits. Discrimination laws are motivated by animosity towards racists. Rape laws are motivated by animosity towards rapists. Slavery laws are motivated by animosity towards slaveholders. And so on.

      1. Rape laws are motivated by animosity toward rapists and not protecting people against being raped?

    2. Perhaps you’d like to revisit Reynolds v. United States, 98 U.S. 145 (1878), which was no doubt motivated by anti-Mormon sentiment.

  5. Could it also be targeting incest, another classification of people one would not be allowed to marry?

    1. I don’t think so, since the penalty enhancement subsection expressly refers to section 25.01, and that only deals with bigamous marriages and not incestuous ones.

      1. Interesting — I read it the same way as Marko. I read the 25.01 limitation only to apply to the last class of victims, those “with whom the actor was prohibited from living under the appearance of being married.”

        All in all, an atrociously poorly-drafted statute.

  6. Re: “…the statute, as read by the court in this case, wouldn’t just enhance penalties for married rapists, but also when an unmarried rapist rapes a married victim.”:

    This seems wrong to me. The court’s judgement centered on the consideration that “…marriage bestows upon *its participants* a certain aura of trustworthiness, *specifically in regard to children*.”

    But with the possible exception of child marriages, neither part which I’ve highlighted applies to your unmarried-rapist scenario.

    1. If you read the statute literally, as the Texas court does, and not as limited to polygamous communities, then the statute on its face equally applies to rape of a married person as to rape by a married person.

      The explanation of why there’s a rational basis for so applying the statute — the material you quote — indeed wouldn’t apply there. But given that the court is willing to come up with explanations that the legislature never intended (and indeed the rational basis test authorizes that), it shouldn’t be hard to come up with one. A possibility: People are more likely to engage in unprotected sex within marriages than within other relationships; therefore, rape of a married person may be hypothetically, marginally more likely to spread a sexually transmitted disease to the married person’s spouse. Totally speculative, and may or may not be right, but that’s just fine under the rational basis test.

      1. Your 2nd paragraph got me to buying your assertion if one adds the qualifier “potentially.”
        But beyond that I gather there’s a lawyerly distinction between “as read” and “as applied” that I failed to make, and fixing that leaves me in a familiar place – convinced by you.

  7. So, if you intend to commit adultery in Texas, you need to get a sworn affidavit from your paramour that the sex is consensual?

    1. What are you talking about?

  8. But how could you then ever have 2d degree statutory rape? TX criminalizes statutory rape of those 14 and under; it also bars marriage for anyone 16 or under. By definition, all cases of statutory rape must then be 1st degree sexual assault. That seems at least a bit irrational.

    1. As I read the subsection that makes the crime a first-degree felony, it applies only to situations where the defendant couldn’t marry the victim because of the polygamy ban. It doesn’t apply to other prohibitions on marriage.

      1. Ah – the “under Section 25.01” applies to “prohibited from marrying or purporting to marry” and not just “or with whom the actor was prohibited from living under the appearance of being married.” I guess it makes more sense that way, although it’s far from clear.

    2. You’re thinking of aggravated sexual assault, which applies to children under 14. (Or older victims if there’s serious injury, a weapon used, etc.) Tex. Penal Code 22.021(2)(B). That’s already a first-degree offense, so the bigamy enhancement doesn’t apply. Second-degree sexual assault in Texas applies to children under the age of 17. Tex. Penal Code sec. 22.011(c). So your second-degree statutory rape would apply to children between 14 and 17.

  9. Thats about as ridiculous as punishing people more harshly for murdering because of (some) skin colors or (some) sexual practices than people who murdered because it felt like fun. Luckily we live in a saner more logical world.

  10. Professor Volokh has said he thinks that North Carolina’s Maeleck v. William and decision upholding the continued constitutionality of adultery laws following Lawrence v. Texas is “generally sound on the constitutional issue.” volokh-conspiracy/wp/2017/09/05/ yes-in-north-carolina-you-can-sue-someone-for- having-sex-with-your-spouse/

    So it seems very straightforward that if the state can punish rape and punish adultery, it can create an “adulterous rape” law that carries a higher punishment than either alone. Whether to do so or not is a matter of policy.

    All the traditional reasons for punishing adultery apply here. Adulterous rape is an affront to marriage as well as to the person.

    There is an additional reason that may be so outside Professor Volokh may not be aware of it. In Orthodox Judaism and other traditional religious forms, adultery is a “die rather than do” offense. A believer is required to die resisting or trying to flee rather than submitting. Although the circumstances where this applies are construed narrowly, these considerations nonetheless make adulterous rape far more traumatic to a traditionally-minded victim than non-adulterous rape would be. The state is can consider both religious accommodation and victims’ subjective experiences. It can make burning a church or a massacre in a church a heightened form of arson or murder because of the additional trauma involved.

  11. Isn’t this simply a conditional punishment based on a voluntary benefit (assuming there is a benefit to being married in TX)?

    If Texas cannot make certain benefits and punishments conditional on state sanctioned marriages, there is no rational basis for the state to recognize marriage.

    Now, one may think that state sanctioned marriages are a bad thing, but that should not color your thoughts regarding this law. Perhaps it is an appropriate trade off for 1% tax benefits that you face increased sanctions if you violently breach your vows.

    1. Marriage is considered a fundamental right. I think creating higher criminal punishments related to a person being married raises some issues about substantially burdening that right. Are you aware of any case law about consent-based criminal enhancement? I suppose it can be one theory for justifying prosecution of adultery, so I’d love to know the latest case law on that issue.

  12. This law seems to challenge a textualist approach. Consider an alternative, ostensibly textualist, reading.

    We could read each clause separately, so that there is an elevated charge where:

    (1) the victim was someone whom the actor was prohibited from marrying [eg incest, underage, one party already married]
    (2) the victim was someone the actor was purporting to marry [eg fiance, victim of delusional stalker]
    (3) someone whom the actor was prohibited from living under the appearance of being married under Section 25.01 [as defined in 25.01]

    I agree with your reading reading that each element relates to Section 25.01, where all three situations are accounted for. But then, why not read in that Section’s predicate that “[the actor] is legally married” thereby precluding the scenario you suggest? Why not wholly rely on Section 25.01 as defining the kind of situation that counts as bigamy for which rape counts as a first degree felony?

    Otherwise, we give such a capacious reading that we render portions of the rape law superfluous (“purporting to marry”). And though the statute explicitly relies on Section 25.01, the court’s reading turns to a kind of theoretical bigamy not always prosecutable as bigamy.

    I’m not contending mine is a better textualist reading (maybe some parts). But I think illustrates how poorly drafted laws challenge textualism, and a purposive approach might be tempting.

  13. So, it seems like the sanctity of marriage will be on the decline considering laws like this. I disagree that a married person appears more trustworthy. Totally discrimination at it’s finest!

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