Bid to remove archaic, misogynistic language from state's rape, sexual battery laws dies without a vote

by Geoff Pender, Mississippi Today
March 1, 2022

Mississippi's rape and sexual battery statutes still contain language right out of the 1800s — about “ravishing” a “female previously of chaste character” — and still provide a spousal defense that can protect those who commit marital rape.

House Bill 1080 would have changed that and brought Mississippi's laws into the 21st century. But it died without a vote on Tuesday's deadline for the Senate to pass it out of committee.

“There are a handful of states that still have a spousal defense on the books, even though basically it's illegal to rape anyone,” said Rep. Dana McLean, R-Columbus, author of the bill. “… It's a shame that sometimes in Mississippi, we seem to be the last state in the Union to actually make something right.”

The bill 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.”

The bill passed the House by a vote of 119-1, with only Rep. Omeria Scott, D-Laurel, voting against it. But McLean said, “I got word that the leadership over in the Senate had a problem with removing the spousal defense for rape. It's disheartening, very disheartening.”

Senate Judiciary B Chairman Joey Fillingane said he agreed with the bill's intent — he even authored a similar one — but he said there were numerous bills in both chambers this session aimed at changing rape and assault laws.

“Any time there's that many, that means it's probably time to have hearings out of session and make some sweeping changes instead of with nine different bills,” Fillingane said. As for opposition to removing the spousal defense, Fillingane said, “That might have been a concern of some people, but that was not the overarching concern … I think people believe this is archaic language that doesn't fit with 2022, and I agree with that.”

Fillingane said Mississippi's legal code in general probably still has a lot of antiquated language that should be removed and rewritten.

READ MORE: Mississippi divorce laws are irrevocably broken. This Senate bill would help

The bill that died Tuesday would have deleted language in the law that said 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.

“What about if a spouse was passed out, or drunk or on drugs?” McLean said. “Should that be OK, because she was not fighting him, or because she passed out?”

McLean said there were references to “a female” in the law that her bill changed to say person, “because men can be raped, too.” She said it also removed 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.”

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.

Another effort to bring Mississippi's laws into the 21st century died — also without a vote — on Tuesday's deadline. Senate Bill 2643 would have added an “irrevocably broken” marriage as grounds for a divorce.

This measure, authored by Sen. Brice Wiggins, was the latest in a long-running, usually unsuccessful effort to update the state's antiquated, misogynistic divorce laws that often trap spouses and children in bad, sometimes abusive and dangerous family situations.

Mississippi and South Dakota remain the only two states without a unilateral no-fault divorce ground. Mississippi's divorce ground of “irreconcilable differences” requires mutual consent of spouses. This frequently makes getting a divorce in Mississippi difficult and expensive, and it often allows one spouse to delay a divorce for years, sometimes many years.

The bill passed the full Senate, but died in the House Judiciary A committee without a vote.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.