Mississippi’s rape and sexual battery laws still provide a spousal defense that can protect those who commit marital rape, and contain archaic and misogynistic language from the 1800s.

In the 2022 legislative session, Rep. Dana McLean, R-Columbus, authored a bill that would have clarified the definition and elements of rape and sexual assault, replacing passages such as “assault with the intent to forcibly ravish a female of previously chaste character.” It also would have removed the spousal defense from the books.

The bill passed the House overwhelmingly, 119-1, but died without a vote in the state Senate.

McLean said she plans to file her bill again in the 2023 session that starts in January. She said she authored it originally at the request of victims’ rights advocates.

“It’s archaic,” McLean said. “The language is specific to females, which it should not be. It’s also important to me that we remove the spousal defense. It’s still illegal to rape anyone, but that provides a threshold offense, which regardless of the other statutes really needs to be revised.”

McLean’s bill would delete language in the law that says a person would not be guilty of rape or sexual battery if the alleged victim was the defendant’s legal spouse at the time of the offense and the couple is not separated and living apart. It would also change law that said a legal spouse may be found guilty of sexual battery if the spouse engaged in forcible penetration without the consent of the alleged victim. McLean said because current law uses language such as “forcible” and “consent,” this could be used as a defense if a spouse was incapacitated, such as passed out drunk or on drugs.

Although since the early 1990s every state recognizes marital rape as a crime, some including Mississippi still have laws on the books that either provide protection for the perpetrator or lesser penalties. McLean said she believes a lot of prosecutors use the state’s sexual battery laws instead of the rape statute with harsher penalties because the latter’s language is so antiquated.

The bill would also change references to “a female” in the law to person. It would also remove language such as: “It shall be presumed that the female was previously of chaste character and the burden of proof is on a defendant to prove she was not of chaste character.”

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