Bill Description: Senate Bill 1089a repeals a section of code defining spousal rape and replaces it with an exception elsewhere in code. 

Amendment Analysis: The amendment to Senate Bill 1089 changes both the rating and the analysis.

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Analyst Note: The original version of Senate Bill 1089 effectively criminalized sex between lawfully married spouses if one of them was under the age of 16. The amendment remedies this problem. 

Senate Bill 1089a repeals Section 18-6107, Idaho Code, which states, "No person shall be convicted of rape for any act or acts with that person’s spouse, except under the circumstances cited in subsections (4), (5), (6) and (10) of section 18-6101, Idaho Code." By repealing this section, a person can be charged with spousal rape under more circumstances. 

Senate Bill 1089a amends Section 18-6101, Idaho Code, to add the phrase "and the victim is not lawfully married to the perpetrator" to two subsections in order to clarify that sex with one's spouse is not a crime based solely on age. 

By repealing Section 18-6107 and amending Section 18-6101, the net change is that subsections (3), (7), (8), and (9) of Section 18-6101 would establish new grounds for prosecuting a spouse for rape.

These subsections are as follows:

(3) "Where the victim is incapable, through any unsoundness of mind, due to any cause including, but not limited to, mental illness, mental disability or developmental disability, whether temporary or permanent, of giving legal consent."

(7) "Where the victim is at the time unconscious of the nature of the act. As used in this section, 'unconscious of the nature of the act' means incapable of resisting because the victim meets one (1) of the following conditions: (a) Was unconscious or asleep; (b) Was not aware, knowing, perceiving, or cognizant that the act occurred."

(8) "Where the victim submits under the belief that the person committing the act is the victim’s spouse, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief."

(9) "Where the victim submits under the belief that the person committing the act is someone other than the accused, and the belief is induced by artifice, pretense or concealment practiced by the accused, with the intent to induce such belief."

Subsections (8) and (9) are unlikely to apply to a case involving married spouses, which leaves the situations described in subsections (3) and (7) as the new grounds which prosecutors may use for filing charges of spousal rape. 

There may well be cases in which acts committed within the scope of these subsections could constitute a violation of the unwilling party's rights, but the act of entering into marriage ought to establish a presumption of consent unless there is evidence to the contrary. 

For example, it is possible that a spouse — due to intoxication, medication, or even some degree of intermittent dementia — might not always be fully capable of giving active and ongoing consent in the manner expected today, but the act of entering into marriage should still be regarded as a presumption of consent.

This change may serve the cause of justice, but it also may pervert that cause. It will depend primarily on how it is applied by law enforcement, prosecutors, judges, and juries. 

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