In a defensive-sounding email sent Friday, the Dick Black campaign reacted to a Weekly Standard piece that doesn’t consist of much more than the video of Black’s remarks about a 2002 bill to amend Virginia’s spousal rape law: Spousal Rape Defending Republican Considering Running for House.

The email claims that “Black was not taking a position for or against marital rape.” While he may not have been literally “taking a position for or against marital rape” during the floor speech captured in the video, it’s difficult to believe that he doesn’t have opinions on the topic. His closest allies on the fringe of “social conservatism” typically take the position that marital rape, by definition, can’t exist. For example, Phyllis Schlafly of Concerned Women for America – the organization for which Mrs. Black is a national lobbyist, and to which Dick Black gave this appalling interview during which he joked that “Concerned Women for America is the women’s organization that likes men” – had this to say in a 2007 campus speech:

By getting married, the woman has consented to sex, and I don’t think you can call it rape.

This wasn’t a mistake. Schlafly affirmed this position again in an interview with another university reporter a year later:

Could you clarify some of the statements that you made in Maine last year about martial rape?

I think that when you get married you have consented to sex. That’s what marriage is all about, I don’t know if maybe these girls missed sex ed. That doesn’t mean the husband can beat you up, we have plenty of laws against assault and battery. If there is any violence or mistreatment that can be dealt with by criminal prosecution, by divorce or in various ways. When it gets down to calling it rape though, it isn’t rape, it’s a he said-she said where it’s just too easy to lie about it.

Was the way in which your statement was portrayed correct?

Yes. Feminists, if they get tired of a husband or if they want to fight over child custody, they can make an accusation of marital rape and they want that to be there, available to them.

So you see this as more of a tool used by people to get out of marriages than as legitimate-

Yes, I certainly do.

It’s hard to believe that ultra-conservative defender of the “traditional family” structure Dick Black, in 2002, did not concur with this very position that Phyllis Schlafly still held and actively promoted in 2008. In fact, these views would typically be considered “traditional” in that they reflect a long history of legal, religious and cultural norms and resist modern understanding of sexuality and gender roles, a commonly argued basis for “morality” law by conservative jurists like Antonin Scalia.

Prior to 1986 it was legally impossible in Virginia for a man to rape his wife. Marriage was an affirmative defense to a charge of rape, meaning that all a defendant had to prove to secure an acquittal was that at the time of the alleged event the parties were married.

1986 is not exactly ancient history. Law enforcing the view that “when you get married you have consented to sex” has been preserved so far into modernity – in fact, there is an effort ongoing right now to remove the marital exception from Singapore rape law – because there are strong advocates for it. The orthodox Catholic position “finds its basis in the following (Latin) definition of the “object of the marriage contract”: ius in corpus alterius ad actos per se aptos ad generationem prolis. This means that the marriage contract concerns ‘the right to the body of one’s partner with respect to acts that are as such suited for generating offspring.’”

Dick Black has not been shy about citing his orthodox Catholic faith principles as justification for his legislative positions. This one, though, is apparently too premodern for even the conservative Weekly Standard. That’s why I think we’re getting this defensive response rather than the usual doubling-down on his “moral” position we’ve seen with regard to other gender issues. Beyond that, what Black unmistakably was taking a position on was a bill that expanded the scope of sexual assault acts that could be prosecuted by striking the following section from Virginia’s definition of rape:

However, no person shall be found guilty under this subsection unless, at the time of the alleged offense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to the spouse by the use of force or violence.

This exception, carving out a special zone in which some marital rapes are guaranteed to go unpunished, is typical of the “reminders” discussed here in the American Criminal Law Review:

Although every state legislature has formally abolished its marital rape exemption, reminders of the exemption still remain in the statutory law of several states. These additional hurdles are found in decreased sentences for the accused, proof of force and/or resistance, and shorter time frames by which a woman has to report a rape by her husband, ultimately making spousal rape more difficult to prosecute. Even in states that do not have these increased requirements, successful prosecution of marital rape cases is still extremely difficult.

Black’s remarks on the floor, as he admits, explain that he doesn’t see how a marital rapist could be prosecuted without the benefit of separation. “I don’t know how on earth you could validly get a conviction when they are living together, sleeping in the same bed, she’s in a nighty, and there’s no injury. We’ve got to establish rules to reasonably ensure that we’re not going to convict an innocent person.”

Note his implicit belief that rape itself is not an “injury.”

As explained in the email, he “was worried about the weakening of the burden of proof and had fears about innocent people being prosecuted. When those fears were assuaged, he then voted for the bill.”

But the language in the bill he explicitly worries about in the video, and about which we are now supposed to believe his “fears were assuaged,” remains unchanged in what ultimately became law: The exception cited above in the definition of rape was stricken. Here is what I think happened, based on the published history of the bill (I should point out here that the link in Black’s email is to the print version of the final vote, which does indeed show that Black ultimately voted for the final version of the bill along with the rest of the House. Linking to this static page makes it less convenient for readers to examine the full history of the bill, but I’m sure that was just an oversight).

Delegate Melvin introduced an amendment reinstating the section “However, no person shall be found guilty under this subsection unless, at the time of the alleged offense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to the spouse by the use of force or violence.” It was rejected. In the subsequent vote on the bill, Melvin was alone in voting nay; Black was, conveniently enough, absent for that vote, although it was taken the same day as his floor speech. What benefit would there have been to him in a later nay vote with no possibility of prevailing? It’s clear from his own words that what he objected to was specifically the striking of that language. But the language was stricken, so what is it that changed? Nothing. He lost the argument, that’s all, and acted to control the blowback his position could cause him later.

Here’s the video Black is now so worried about, from Feb. 7, 2002: