There was a time when a woman who was married to a man had no legal protections if the man refused to take “no” for an answer when it came to having sex. In fact, there are still some countries that abide by these rules, but in California, it doesn’t matter if a couple is married or not -if one person forces another to have sexual intercourse, it is rape. That being said, in California, when a person rapes a spouse, they will face charges under a distinct section of the penal code that applies exclusively to marital rape cases, namely California State Penal Code section 262 (PC). It’s also worth noting that charges for this offense are also frequently paired up with domestic violence charges. With such an emotionally-charged topic, it should not be surprising that spousal rape charges are rarely simple, which is why anyone accused of these crimes should immediately seek the assistance of an experienced criminal defense attorney in San Diego.
Difficulties Involved with Marital Rape Charges
The problem with spousal rape charges is that the victim and the defendant have such an intimate relationship with one another. It is easy to see how someone going through a major argument or a divorce would have grounds to claim the other person raped them. To make matters worse, while DNA evidence and a medical examination could show whether or not the couple had sex, it won’t be able to prove if the act was consensual. Even if the evidence shows the alleged victim had some mild bruising, this can often be explained away by arguing that the couple engaged in S&M or other forms of rough sex.
Unfortunately, in attempting to defend yourself against such accusations, you could inadvertently confess, which could destroy your case later. Even if you think you’re having a private conversation over the phone with your spouse, detectives could be listening and recording the call, hoping you say something to harm your defense. This is why you should never speak with the police or even your spouse without your lawyer present if your partner has accused you of rape.
The good news is that spousal rape charges are rarely prosecuted because the inherent complexity of marital relationships, makes these cases very difficult to prove.
The Act Doesn’t Need to be Violent
Like non-marital rape charges, these crimes do not need to be violent, they simply need to involve sex that occurs without consent. If a husband takes advantage of his wife while she is passed out after a night of drinking, it is still considered rape. Unfortunately, these types of charges can be far more complex than other rape accusations because the two people involved in the case usually live together and may not verbally “consent” to intercourse before each sexual interaction.
You Can Fight These Charges
In some cases, the incident boils down to a simple misunderstanding. Because these cases are so emotionally-driven, it is critical you speak with an attorney as soon as you find out you are being charged with this crime. Do not try to talk to your partner or the police as what you say or do could end up hurting your case later on.
Penalties for Spousal Rape
The penalties for marital rape in California are the same as other forms of sexual assault and range from three to eight years in state prison. The sentence could also be increased by an additional three to five years if the rape resulted in great bodily harm to the victim. Additionally, those convicted for this crime will be forced to register as a sex offender if force or violence was used in the process of the rape.
Difference Between 262 (PC) and 261 (PC) Charges
One small difference between spousal rape charges and other sexual assault crimes is that probation is sometimes given in place of prison time. This is not only means that the criminal defense lawyer can ensure his client will receive a lighter sentence, but that the client will also be excused from mandatory registration as a sex offender and may even be eligible for criminal expungement later on.
While this is obviously quite beneficial for these accused of the crime, many sex crimes rights advocates have been campaigning to remove the marital rape exception from the standard sexual assault code, 261 (PC). They argue that those convicted for spousal rape should not be eligible for only probation and should be required to register as a sex offender. In fact, a bill currently going through the state legislature proposes to charge marital rape under the same statute as other forms of rape. The bill, AB 1171, is only one of a few bills with the same goal introduced over the last few years, so chances are this change will be successful at some point in the near future.