Demagogue

I won't quote the details. If you want to read an especially revolting tale of rape, you can.

Long story short: a man allegedly raped his wife in Arizona. As you may know, until fairly recently it was legally impossible to convict a man of raping his wife, but state laws have now gotten rid of this blanket immunity. In many states, however, including Arizona, the penalties for spousal rape are lower than under the general rape statute. The disparity in Arizona is one of the country's highest--so high, in fact, that domestic violence advocates claim it violates the Equal Protection Clause.

However bad one might think the situation is as a matter of policy and justice, I can't see the equal protection claim getting very far. But what really won't--or at least shouldn't--get very far is the attempt by prosecutors to use this theory as a basis for charging the man under the general rape statute.

The original Constitution, even after the adoption of the Bill of Rights, contained very few individual rights against state and local governments; most constitutional rights could be asserted only against the federal government. One of the exceptions was the prohibition of ex post facto laws. The Framers considered this principle--that you couldn't make an act illegal, then punish someone who had engaged in that act before it was a crime--so important that they barred the states from doing it, even though their general approach was not to protect individual rights against the states via the federal Constitution.

I'm not sure how long ago the Supreme Court clarified this point, but it's well-established that the Ex Post Facto Clause applies not only to making legal conduct illegal, but to increasing the punishment for a crime after it's been committed. For example, when New York finally passed a death penalty law a few years ago, it couldn't execute people who had committed their crimes even a day before the bill became law, even though their trials and sentencing happened after the statute was in effect. This is so basic and ironclad that I'm sure no prosecutor even considered trying it.

Which is a longwinded way of saying the Arizona prosecutors have to lose, no matter how laudable one may think their goal is. When this guy (allegedly) committed his horrible crime, the maximum sentence he could get for it was 18 months, and therefore that's the most the state can impose. At least it's better than men who raped their wives before the laws eliminating the spousal defense went into effect; they couldn't be punished at all.