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Prosecutors fight Ariz. spousal rape law

Cite disparities in punishment

FLAGSTAFF, Ariz. -- The 49-year-old woman was awakened about midnight by an attacker who choked her, dragged her by the hair, and raped her so many times that she lost count, police say. When she asked her attacker whether she would live, he allegedly told her, "We'll see."

Usually, a brutal rape would be punishable by up to 14 years in prison in Arizona. But in the case of the woman above, the accused is her husband, so the alleged crime is considered spousal rape.

The punishment: no more than 1½ years in prison, but perhaps no prison time at all.

Prosecutors in Coconino County, where the alleged attack occurred, say the disparity is unconstitutional. So in addition to bringing charges of kidnapping and assault against the 45-year-old man in the alleged attack in September, they have charged him under the standard rape law, setting the stage for a legal battle over whether Arizona's spousal rape statute violates the Constitution's equal-protection guarantees.

"The current statutes are extremely unfair and unconstitutional, and they need to be changed," said David Rozema, chief deputy in the Coconino County Attorney's Office.

Advocates for domestic violence victims say few states treat spousal rape and other forms of rape as disparately as Arizona does.

Under Arizona law, spousal rape is the lowest possible felony. The burden of proof is higher than it is in standard rape cases, and it makes no difference whether the spouses are estranged or living apart.

"It treats victims differently solely because of their marital status," said Keli Luther, of the Crime Victims Legal Assistance Project in Arizona. "We think this is really archaic."

About half the states treat spousal rape differently from other types of rape, according to the American Prosecutors Research Institute, the research arm of the National District Attorneys Association.

Some states give women less time to come forward with a claim against a husband or require proof that force was used. Most laws on nonspousal rape require proof only that the assailant lacked consent.

Tennessee says spousal rape should be punished by three to six years in prison, while other rapes carry eight to 12 years. In South Carolina, aggravated spousal rape involving couples living together carries a maximum of 10 years in prison; roughly the same crime committed by someone else can bring a penalty of 30 years.

Many spousal rape laws were drafted in the 1970s and were considered progressive at the time because they recognized it was possible to rape a spouse. Historically, wives were considered property of their husbands, and sex was regarded as a wife's duty.

Luther is representing a rape victim in a separate case challenging Arizona's law in the state Court of Appeals. In addition, a bill that would make the punishment for spousal and nonspousal rape the same is before legislators this year.

An effort to change the way Arizona treats spousal rape died in the Legislature last year. Some legislators have expressed concerns about possible false allegations or the difficulty in proving charges when the defendant and the victim had a prior sexual relationship.

In the Coconino County case, the defendant, who is not being identified to protect the wife's identity, has pleaded not guilty to attacking his wife at a motel where the couple had been living.

Steven Harvey, the defendant's lawyer, said he will seek to have the rape charge dismissed because the two are married. "They can file any charge they want, but it's a charge that has an absolute defense," Harvey said.

Coconino County prosecutors' challenge to the law is unusual. Prosecutors usually lobby legislatures on laws they disagree with, or hit the defendant with additional charges to lengthen the possible prison time. In this case, they filed a request to prevent the defendant from using the couple's marriage to get the charge thrown out.

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