Strong on the Rideouts, Weak on the Revolution

The 1978 trial Oregon v. Rideout was a watershed moment in the history of rape prosecutions in the United States. Prosecutors tried, and failed, to enforce a recently passed marital rape law against John Rideout, who had been accused of raping his wife Greta Rideout. Without Consent by Sarah Weinman aims to contextualize this trial in the greater narrative of late twentieth century feminist narratives of marital rape but, in practice, mostly just discusses the Rideouts themselves.

Without Consent : A Landmark Trial and the Decades-Long Struggle to Make Spousal Rape a Crime
Sarah Weinman
Ecco; 299 pages

Of the four parts of the book, Parts 1 and 2 deal with the leadup and aftermath of the trial on their lives, while Part 4 is a follow-up on the second John Rideout trial of 2017, where he is accused and convicted of two non-marital rapes. Only Part 3 makes any attempt to discuss the legal and cultural contexts of marital rape in this time period — and, sadly, it does a poor job of that.

For a sense of perspective, it is only at the start of Part 3 that Weinman finally provides a clear definition of rape. In California in 1979, according to Weinman, the California Penal Code specifically defined rape as “sexual intercourse accomplished with a female not the wife of the perpetrator.” Weinman takes this passage, and focuses solely on husbands’ immunity to prosecution from raping their wives. Compare that to the post-2013 FBI definition of rape which removes that bias — “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim” — and Weinman’s failure to mention force or consent as relevant considerations becomes glaring.

The history of rape’s legal definition is complex, to say the least, and can’t be easily summarized in a book review like this. Where it can, and should, be summarized, however, is in a book that features as its subtitle, “the decades-long struggle to make spousal rape a crime.” Legal theory can be elaborate and the compromises in the legislative process don’t make understanding the forthcoming law any simpler. There is no perfect phrasing, no perfect summary of any kind of criminal code which can assure us that justice will be done. How these laws were written, though, is core to understanding why the marital rape exemption existed, and the difficulties involved in patching these codes to modern standards.

Frustratingly, Weinman doesn’t make any significant effort to discuss these technical issues. She barely even acknowledges they exist. The citation of the 1979 California Penal Code is practically the only reference Weinman makes to actual statutes. Weinman discusses the specific part of the Historium Placitum Coronae by the 17^th century jurist Matthew Hale that deals with marital rape, but makes no effort to contextualize his reasoning aside from saying that he also believed in burning witches.

Even then, Weinman fails to note that the Historium Placitum Coronae is a (very) long book about a number of Hale’s personal interpretations. They were not binding when he wrote them, and they were not binding when they were published sixty years after his death. One of the few other historical sources Weinman acknowledges, is Daniel Defoe’s Conjugal Lewdness. She notes that it provides a competing but roughly contemporary legal viewpoint about marital rape to Hale’s, but frames it nearly as misleadingly as if Defoe was a forward thinker when the essay is best known for its discussion of contraception as being diabolical.

Weinman’s minimal discussion of legal theory is, in all fairness, not entirely relevant to the main meat of Without Consent, which deals with Oregon v. Rideout from the perspective of the victim, defendant, and lawyers. Indeed it feels like the author was counseled, against her better judgment, to broaden the scope of her book from the true crime writing at which she excels. But it’s still a problem that readers are not told how any of these principal figures understood the word “rape.” For example, what did John Rideout, the accused in this case, think he was allowed to do and why?

John Rideout himself is not an especially erudite figure, mind you. Weinman’s contacts with him, laid out in full in the epilogue, quickly devolve into unprovoked, ungrammatical commentary about the made-for-TV film Rape and Marriage: The Rideout Case starring Mickey Rourke as Rideout himself, and co-starring Linda Hamilton and Rip Torn. At best, he seems to have talked himself into believing that his victims consented.

But the lawyers are a different story. Weinman clearly interviewed a large number of people with relevant technical opinions on the efficacy of a legal approach centered on marital rape laws rather than domestic abuse statutes; there is an open question in the feminist community about which approach will lead to better outcomes. But Weinman presents no debate, only two sides to the legal discussion: Hale-loving misogynists, or feminist activists taking a stand against the patriarchy.

Ironically, as Weinman documents it, the Oregon v. Rideout case itself demonstrates how an aggressive prosecution of serious charges is not necessarily in the best interests even of the victims. John and Greta Rideout were messed up kids who weren’t sure what they wanted or what they were doing. The legal situation of the trial worsened both of their financial positions, to the point that they ended up getting back together, albeit briefly. In a further irony, this sort of structural situation is precisely why Hale did not believe in the concept of marital rape. Since he considered husbands and wives to be two parts of the same contractual unit, such a prosecution was, to him, akin to self-harm.

It’s not a perfect analogy. Neither Weinman nor I agree with it. Weinman, though, does manage to come up with a worse one. She looks to Asian American rights, using S. Floyd Mori’s quotation:

“In early California history, Asian Americans had no civil rights and were not recognized in courts of law. The attitude was, ‘if you don’t like it, go back to China’. We now strip wives of their civil right to their own body and tell them, ‘if you don’t like it, get a divorce.’”

Weinman treats this quotation as if it were a mic drop, self-evident and unimpeachable, while ignoring the logical fallacy of the comparison. Unlike immigrants who want personal rights, but also to stay in relationship with America, generally speaking, women who bring charges of marital rape are indeed trying to have bodily rights, but leave their marriages.

Such ideological anecdotes come at the expense of more relevant cultural discussions. There is no mention of the right to privacy or the ’60s revolution in sexual and gender liberation. Roe v. Wade is cited three times exclusively in terms of political, rather than legal impact. One of those references does at least briefly refer to the legal idea of privacy, but only in the specific context of comparing it to People v. Liberta, an appeals court case. And only as a quote from Laura X, who is not a lawyer.

Weinman presents Laura X as the main activist leader responsible for the criminalization of marital rape. The book provides little evidence that this is a fair description of Laura X’s actual influence, given that the main high profile thing Weinman discusses Laura X doing in regard to marital rape is having an argument about it on Donahue. This is just one of the many ways that Without Consent feels incomplete. The criminalization of marital rape happened over dozens of states throughout multiple decades. Whoever was pushing for these changes, must have been part of a much broader political coalition than Weinman discusses here.

Perhaps the central irony of Weinman’s book is that the book is compelling when relating the true crime story of the Rideouts themselves. They are messy, ambiguous people, and Weinman is careful to avoid demonizing even John Rideout too much. But she lacks any sort of comparable compassion for the society within which the Rideouts exist: a society that is, itself, made of people making the best, most moral decisions they can within their own, familiar frameworks.