Criminal Defense

Can I Be Charged With Raping My Spouse?

January 17, 2023 by Mikel Rastegar in Criminal Defense  
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What Is Marital Rape or Spousal Rape?

California PC 262 details the offense of rape against a spouse. To commit spousal rape, an offender must have sexual contact with their wife in violation of her consent owing to coercion, intimidation, or drunkenness.

If a wife gives her informed, unrestricted consent to sexual activity, it indicates she is willing to participate in the activity despite any negative consequences she may face. A woman cannot know what she agrees to do without full knowledge. When a victim is duped into thinking that the defendant is her spouse, she has not intentionally agreed to have intercourse with the defendant (PC 262). Any time the penis enters the vagina or genitalia, however little, it is considered a sexual interaction. There’s no need to ejaculate.

It is important to remember that a wife’s permission to engage in sexual activity with her husband may be revoked at any time during the act, either verbally or via her body language, rendering the sexual activity illegal and without consent.

Punishments For Violating PC 262

Spousal rape under PC 262(a)(1) is punishable by a felony sentence. A person convicted of marital rape under this code provision faces 3, 6, or 8 years in prison, depending on the circumstances of the case and the person’s prior criminal record.

  1. Probation
    An alternative to incarceration may be a term of probation under strict judicial monitoring. Sentences of probation may be imposed in cases of marital rape. However, this is not always the case. In reality, a judge will only grant probation for marital rape if exceptional circumstances exist. The interest of justice would be better served if the defendant did not go to jail for special reasons.
  2. CIMT Crimes Involving Moral Turpitude
    If the court does not issue probation for violating PC 262(a)(1), the offender will spend his time in a state prison rather than a county jail. In addition, marital rape convictions have mandatory minimum jail terms that cannot be reduced or suspended.

    Charges of spouse rape are regarded as crimes of moral turpitude, which indicates that spousal rape is ethically unacceptable. Any licensed professional, including physicians, nurses, attorneys, and others, who are found guilty of a crime deemed to be one of moral turpitude may have their license withdrawn or suspended. Immigrants who are found guilty of crimes with a high moral standard may also be expelled from the country.

  3. The Three-Strikes Rule
    California law classifies spousal rape by force, fear, or threats as a severe and violent crime (PC 262a1). This indicates that marital rape is a strike violation under California’s Three Strikes Law. The offender is only eligible to receive a maximum of 15% of his sentence as credit for good conduct while incarcerated.

After a conviction for marital rape, a person may be ordered to register as a sex offender. This condition would be in effect only when the rape was committed with physical force. In California, it is a crime in and of itself not to register as a sex offender.

Legal Defenses to California PC 262

  • Consent
    Since the parties were married, the spouse’s permission is one of the most evident defenses. If the defendant’s spouse consented to the sexual conduct, there was no marital rape. If the spouse first consented but afterward changed their mind, the perpetrator cannot be convicted unless the victim made it obvious that they wanted the conduct to halt.
  • False Accusations
    Many couples dislike one other but stay married for various reasons; some may have even initiated divorce before the false rape allegation was made. False charges may be motivated by a desire for child custody, retaliation for adultery, or anger aimed at the spouse, among other motives. This may be an acceptable defense if there is no proof of physical violence and no other evidence to corroborate the accusation of marital rape.
  • Absence of Evidence
    It should be sufficient to acquit the defendant if the accusation consists only of one spouse accusing the other without further proof.

Can a Person Expunge a Conviction?

The convictions of those convicted under PC 262 cannot be expunged. This is because California law prohibits expungements for offenses that result in a jail term for the defendant.

What are Some Similar Crimes?

There are three associated offenses with marital rape. These include:

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