LANSING, Mich. — Gov. Gretchen Whitmer signed bipartisan legislation last week removing a Michigan marital rape loophole, but two still remain on the books.
The loophole, created in 1931 as part of Public Act 327, prevented prosecutors from charging an individual who engages in criminal sexual conduct with their mentally incapacitated spouse.
Michigan law has a very specific definition for "mentally incapacitated," which means that "a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent."
Whitmer signed House Bill 4202 last week, which removed the loophole preventing prosecution if the spouse is mentally incapacitated.
The two loopholes that remain are if your spouse is under the age of 16 or if your spouse is "mentally incapable."
The term "mentally incapable" also has a specific definition in Michigan law, which means that "a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct."
That means that currently in Michigan, a person cannot be charged for sexually assaulting their spouse if they are under the age of 16 or if they are incapable of giving consent.
While the legislation to remove the loophole was passed with nearly no opposition, five GOP house members were opposed to the bill. Steve Cara of District 36, Matt Maddock of District 51, Angela Rigas of District 79, Josh Schriver of District 66 and Neil Friske of District 107 all voted to keep the marital rape loophole in the Michigan Penal Code.
In 1993, marital rape became illegal in at least one section of the sexual offense codes in all 50 states, but several states still have loopholes in their penal codes.
The loopholes don't go unused, either. Most notably, a case in Minnesota saw a man's sexual assault charges dropped against his wife because of a marital rape exception in the Minnesota law.
In 2017, a Minnesota woman discovered videos of her husband raping her while she was unconscious and gave the videos to law enforcement. Her husband was arrested, but ultimately the charge of sexual assault was dropped because of a loophole.
Two years later, the loophole was repealed with bipartisan legislation, according to Minnesota Public Radio.
Michigan's repeal of the loophole was part of an eight bill package that completely outlawed child marriage in the state and also made it legal for unmarried people to cohabitate.
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