Many people do not think they can be charged with a crime for raping their spouse. However, there is actually a specific area of law in California that makes spousal rape a crime. This crime is covered under California Penal Code Section 262.

The Irvine spousal rape attorneys at Wallin & Klarich have more than 35 years of experience successfully defending people accused of sex crimes in Irvine. If you are charged with a sex crime such as spousal rape, your freedom depends upon choosing an experienced and aggressive attorney. Our attorneys can help you.

Let’s explore the crime of spousal rape and how you could face this charge.

Can a Man Be Prosecuted for Raping His Wife?

Traditionally, sex crime laws such as rape were not made applicable to spouses. It was once considered that spouses always consented to sex by virtue of the fact that they were married. Therefore, it was not possible to rape one’s spouse in a legal sense.

However, California has done away with this exception and, accordingly, one can legally be prosecuted for spousal rape. The law is contained in California Penal Code Section 262 and is similar to the crime of rape.

How Does California Penal Code Section 262 Define Spousal Rape?

Irvine spousal rape attorney
If you are accused of spousal rape or any sex crime, contact the Irvine spousal rape attorneys at Wallin & Klarich immediately so we can begin helping you.

Spousal rape is defined as having sexual intercourse with one’s spouse, where the intercourse happens in one of the following situations:

  • It’s committed by force or fear. Specifically, it’s committed “against a person’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another [person].”
  • It’s committed when your wife is intoxicated. That is, where your wife is “prevented from resisting by any intoxicating or anesthetic substance or any controlled substance and this condition was known, or reasonably should have been known, by” you.
  • It’s committed when your wife is unconscious of the nature of the act. This means that, at the time of the act, your wife:
    • Was unconscious or asleep; or
    • Was not aware, knowing, perceiving or cognizant that the act occurred; or
    • Was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
  • Where the act is accomplished by making threats of future harm against the victim or any other person. This means threatening to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury or death.
  • “Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official…‘Public official’ means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.”

These elements are essentially the same as rape, but they are prosecuted under PC 262 because the act occurred against the defendant’s wife.

What is the Possible Punishment for Spousal Rape?

Spousal rape is punishable the same way rape of a non-spouse is. Penal Code section 264 provides that spousal rape is punishable by imprisonment in the California state prison for a term of three, six or eight years.

In some cases, the court will grant probation on condition that the person convicted of spousal rape serve up to 364 days in the Orange County jail.

punishment for spousal rape
The punishment for spousal rape is severe.

The law also provides that you can be fined up to $10,000, or, if you’re granted probation, be required to donate up to $1,000 to a domestic violence shelter and pay for reasonable counseling expenses for the victim of the offense.

Surprisingly, registration as a sexual offender pursuant to Penal Code Section 290 is not required unless you are both convicted of violating Penal Code section 262(a)(1) (spousal rape by force or fear) and are sentenced to state prison.

While sex offender registration might not be mandatory in these cases, the sentencing court always has discretion to order you to register as a sex offender under the authority of Penal Code section 290.006. This law permits the court to order you to register as a sex offender in any case where the court finds that the crime was committed as a result of some sexual compulsion or for sexual gratification. This is often the case in spousal rape matters.

Of course, being forced to register as a sex offender for life is as bad as, if not worse than, being convicted in the first place. You may have to stay away from certain areas such as parks and schools, and you may not be able to find employment. Having a skilled criminal defense attorney can often mean the difference between having to register as a sex offender for the rest of your life and not having to register.

Defenses to a Spousal Rape Charge

There are several defenses to the charge that might apply and deciding on the best defense for any given case requires a skilled and experienced criminal defense attorney who has investigated the particulars of the case.

Consent is called a defense but is really something the D.A. must disprove.

The law provides that the prosecution must prove that your wife did not consent to the act. That is, they must disprove consent beyond a reasonable doubt. Consent means that your wife acted freely and voluntarily and knew of the nature of the act, and the law presumes that she consented unless the prosecution can prove otherwise. The law goes one step further.

The prosecutor must also prove that you did not reasonably believe your wife consented to the act. That is, the prosecutor must prove, beyond a reasonable doubt, that there was no way that you could have understood your wife’s words or actions as giving you consent to have sex with her. This is a tough burden for the prosecution.

Sex between spouses is never that formal, right? After all, when spouses have sex with one another, they don’t go before a notary public and sign an affidavit under penalty of perjury stating that they are agreeing to have sex. How many married people out there have said to their spouse: “Honey, I would like to have sexual intercourse with you and I am hereby requesting your consent.” This means, even if your wife didn’t say “I hereby give you my consent to have sex,” if you reasonably misunderstood her actions as her giving you consent to have sex, you cannot be convicted.

A woman can take her consent to sex back during the act, but, again, there are very specific requirements that must be shown in order to prove that she took her consent back. If she did not, you cannot be found guilty of spousal rape. Specifically, the law provides that a “woman who initially consents to an act of intercourse may change her mind during the act.” If she does so, under the law, the act of intercourse is then committed without her consent if:

  • She communicated to the other person that she objected to the act of intercourse and attempted to stop the act;
  • She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; AND
  • The other person forcibly continued the act of intercourse despite her objection.

False allegations of spousal rape are common.

It is common for a spouse to falsely claim that she was raped or victimized by domestic violence. Sometimes this is done to try to hurt her husband in some way for something he may have done to her, but we see these cases come up most often in the context of divorce and/or child custody battles.

It’s really a win-win for the woman. Prosecutors are generally very reluctant to charge the woman with perjury or lying to the police – even where the prosecutor admits in open court that the man was falsely convicted and sentenced to prison. This means there’s little downside to lying to the police or the D.A. for the woman.

The upside is she gets the satisfaction she’s seeking. Perhaps it’s as simple as desiring to see her husband carted off to jail by the police. Perhaps it’s something more. In many cases, women falsely claim they were raped or were hit by their husbands in order to gain a leg up in child custody or divorce proceedings. It gives them control and money. The amount of a woman’s child support award in such a case is decided not only by the family’s income, but also by how much custody time each parent gets. A person who has 50 percent custody gets less child support than a person who has 100 percent custody. So, if the woman can convince the family court judge that her husband is abusive, she can get 100 percent custody of the couple’s children and, therefore, a higher child support award. The result is that she has control over her husband’s life and their children, and she also receives a larger child support check.

Contact the Irvine Spousal Rape Attorneys at Wallin & Klarich

Irvine Spousal Rape Attorneys
Contact our Irvine spousal rape attorneys now!

Spousal rape is a serious crime in California, and you face consequences that could impact you for the rest of your life if you are convicted of this crime. That is why you should not hesitate to contact an experienced Irvine rape attorney if you have been accused of spousal rape.

Our lawyers at Wallin & Klarich have been successfully defending clients facing rape and sex crime charges for more than 35 years. We will fight aggressively for you.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, our experienced spousal rape lawyers are available near you no matter where you work or live.

Contact our law firm today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case. We will be there when you call.

Author

Author: Stephen Klarich

Stephen Klarich is a partner at Wallin & Klarich and expert in the field of sex crimes. For over thirty years, Stephen Klarich has been handling criminal cases and matters involving sex offenses. With an unparalleled knowledge of sex crimes defense, Stephen Klarich protects his clients’ rights. Stephen Klarich has experienced significant success in obtaining a Certificate of Rehabilitation or Governor’s Pardon for his clients. Thousands of clients have put their trust in Stephen Klarich and the attorneys at Wallin & Klarich in their time of legal need.

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