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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.

|The Volokh Conspiracy |


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.