Rape is non-consensual sex with another person. An individual gives consent when they voluntarily and freely agree to participate in the act. You might know that engaging in unwanted sexual conduct with a non-spouse is illegal. But what about when you're married to the person you had sex with? Is that a crime, and can you be accused of such an offense? Yes.
California's Spousal Rape Law
California has two laws criminalizing an act of non-consensual sex with another person. California Penal Code 261 PC is concerned with rape of a person with whom the accused is not married. California Penal Code 262 PC provides that it's unlawful for a person to have non-consensual sex with someone who is their spouse.
Non-consensual sex isn't just having intercourse with your spouse when they did not verbally agree to it. It can include instances when they are physically unable to voice their protestations or when they are not aware that they are being raped because you used fraud or deceit.
The law provides that spousal rape occurs when you have sex with the person you're married to under the following circumstances:
- You used force, violence, or a threat of immediate bodily injury
- Your spouse couldn't resist because there were intoxicated by alcohol, drugs, or another substance and you knew they were in this state of mind
- Your spouse was not aware that the act was occurring because they were:
- Unconscious or asleep
- Unaware of what was happening
- Unaware of what was happening because you used fraud or deceit
- You threatened to retaliate against them or someone close to them if they resisted
- You threatened to take some type of legal action against them if they resisted, such as having them deported
What Are the Penalties for Spousal Rape?
If you're convicted of raping your spouse, you could be imprisoned for 3, 6, or 8 years. However, if you were working with another person to accomplish the rape, the sentences increase. In such a situation, you can be sent to prison for 5, 7, or 9 years.
You could also face other penalties besides incarceration. For instance, under California Penal Code 290, if you raped your spouse using force, violence, or a threat of bodily harm, you must register as a sex offender. This requirement can have profound ramifications on your life. Some of the information you submit to the sheriff's department is public, which means other people can access it. This can result in social stigma, a ruined reputation, and limitations on where you can live and work.
Are There Defenses to Spousal Rape?
Being accused and convicted of spousal rape can be damaging. Unfortunately, allegations of this offense are sometimes falsely made after spouses have had disagreements with each other or they are going through a divorce.
Depending on the circumstances, defenses can be raised to challenge accusations of spousal rape. Finding the weaknesses in the claims and fighting back against the charges requires a thorough look at the facts of the case, which a skilled lawyer can help with.