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The provision of the California Penal Code that describes the crime of spousal rape is 262 PC. In California, spousal rape is a felony punishable by a prison sentence of up to eight years and a fine of up to $10,000. (This money will be donated to a battered women’s shelter.) Additionally, when force or violence is a factor, the perpetrator will be required to register as a sex offender pursuant to California Penal Code 290. These penalties are equivalent to penalties imposed in cases involving stranger rape.
In 1979, when California’s state legislature introduced a bill allowing prosecution for marital rape, State Senator Bob Wilson asked, “If you can’t rape your wife, who can you rape?” The bill passed despite State Senator Wilson’s objections, and California became one of the first states in the nation to recognize that nonconsensual sexual intercourse between married partners qualifies as rape. The original legislation only stipulated rape by force, however; rape by coercion, rape by threat and rape when the victim is incapable of consent were not a part of California’s earliest spousal rape laws though they were a part of the state’s more general rape statutes. Today, these contingencies are also included as part of California Penal Code 262 PC.
If your spouse accuses you of rape in Los Angeles, it’s important to take this charge very seriously. Speak with a Los Angeles criminal defense attorney as soon as possible to protect your legal rights and to explore the options that are available to you.
When Is It Spousal Rape?
Spousal rape is not spousal assault or spousal battery, which are addressed by California’s domestic violence laws (California Penal Code 273.5 PC.) Nor is spousal rape the same as sexual battery, which California Penal Code 243.4 defines as the intentional touching of genitals or secondary erogenous zones against the other party’s will for the purpose of sexual arousal or gratification.
In order to qualify as rape under California Penal Code 262 PC, sexual intercourse must take place without the other party’s consent either through force, violence, implied threat (duress), actual threat (menace) or the fear of bodily injury. Additionally, spousal rape can be said to have taken place if the victim is incapacitated through the use of alcohol, drugs or some other intoxicant and the alleged perpetrator either knows this, or it’s reasonable to assume that he or she knows this.
The Marital Rape Exemption
California recognizes one exception to its spousal rape laws. California Penal Code 261.5 PC makes it illegal to engage in sexual intercourse with a person under the age of 18. The legal term used to describe this sexual contact is “statutory rape.” However, if the alleged perpetrator is legally married to the underage individual, such sexual conduct will not meet the legal definition of either statutory rape or spousal rape.
He Said/She Said
The intimate nature of the marital relationship sometimes means that accusations can be motivated by rage, jealousy, or even a calculated determination to acquire a strategic advantage in the division of marital assets. The burden of proof is on the prosecution to prove first, that sexual intercourse did take place and second, that the spouse making the accusation did not consent to sexual intercourse. In the absence of compelling physical evidence, the case may come down to what he says versus what she says.
An accusation of spousal rape is not something to take lightly even if you know the accusation has no justification. Felony convictions carry serious consequences. Consult with an experienced criminal defense attorney as soon as possible to safeguard your rights.