THE LAW : Most States Now Ban Marital Rape : Until the ‘70s, the act generally was not a crime. In California, it can be treated as a misdemeanor or felony.

States are moving to outlaw marital rape, the act of sexually assaulting one’s spouse.

During the 1991 legislative session, four more states--South Carolina, Missouri, New Mexico and Utah--enacted laws making spousal rape a crime. That leaves only two--North Carolina and Oklahoma--with laws that enable a defendant to use the fact that he is married to the victim as an absolute defense against the charge of rape.

Diana Russell, author of “Rape in Marriage,” has estimated that one in seven women will be raped by their husbands during the course of a marriage.

“Rape is rape regardless of your marital status,” said Maria Luisa Ochoa, chief of staff to California Assemblywoman Lucille Roybal-Allard (D-Los Angeles), who is sponsoring a bill to toughen the state’s penalties for spousal rape.

BACKGROUND: Spousal rape has long been ignored and has not even been regarded as a crime until relatively recently. Traditionally, U.S. law held that a man could not rape his wife because the marriage contract did not give her the right to refuse to engage in sexual intercourse with her husband. Indeed, until the 1970s, most states had laws specifically exempting husbands from being prosecuted for the rape of their wives.

But, by 1980, three states had completely repealed their marital-rape exemptions, and five more had begun to sanction prosecutions of husbands for rape in certain circumstances. As the decade wore on, other states followed.

However, attempts to repeal laws governing marital rape often ran into trouble. Opponents argued that eliminating the exemption for marital rape would bring government into private family disputes and encourage false accusations.

Advocates for battered women say that many of the current laws regarding marital rape are flawed because they either make spousal rape more difficult to prove or else treat it less seriously than other cases of rape.

About 30 of the states that have eliminated the spousal-rape exemption have “major problems,” according to Laura X of the National Clearinghouse on Marital and Date Rape in Berkeley.

That includes California, where marital rape may be treated as a felony or misdemeanor. A bill to bring the penalties for spousal rape in line with the other rape laws cleared the State Assembly with ease but has been postponed until the 1992 session.

Continuing deficiencies in state law often are the result of compromise. In South Carolina, where the crime must be reported within 30 days and a wife must also prove that she was physically injured during the attack, legislation making marital rape a crime was killed for five consecutive years before it finally was voted into law this year.

In Texas, the state has closed some--but not all--of the loopholes. A wife now has to demonstrate bodily harm or the threat of bodily harm before she may charge her husband with rape. Supporters say that, although the legislation is not perfect, it is better than the previous legislation, which permitted prosecution only in cases involving aggravated assault or kidnaping.

But other states that have eliminated the spousal exemption this year have done so completely, and those convicted of marital rape are subject to the same penalties as those convicted on traditional rape charges.

THE OUTLOOK: It appears likely that spousal rape will remain an issue, particularly as states continue to seek ways of combatting domestic abuse. Those arguing for eliminating the exemption from prosecution say they will keep trying to close loopholes in existing laws.

“I think women are beginning to feel more comfortable talking about the type of crimes that were behind closed doors for so many years,” Ochoa says. “Women are beginning to say, ‘Enough is enough.’ ”

Different Laws on Marital Rape

Marital rape is a crime in itself in:

Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Indiana, Maine, Massachusetts, Missouri, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oregon, South Dakota, Utah, Vermont, Wisconsin, District of Columbia.

Marital rape generally is linked to some other crime in:

Arizona, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia, Wyoming.

A man may not be prosecuted for raping his wife in:

North Carolina, Oklahoma.

Source: National Clearinghouse on Marital and Date Rape