Marital Rape

Before 1975, no state had in its laws any coverage of Martial Rape, and the last state to pass a law was in 1993. While a newly passed legal phenomenon, instances of martial rape and martial violence have been documented since the 18th Century when common law first took notice. Martial rape is defined as the unlawful sexual conduct with a victim who is the spouse.

Being Accused and Charged of Marital Rape

Accusations and charges of martial rape used to be subject to a “martial exemption” that prevented a spouse from being charged with rape. However, since 1993, that exemption has essentially disappeared, but some aspects of it still exist. While a rape charge may not stick, the spouse-suspect may be charged related crimes like assault, battery, or spousal abuse. For example, in the U.S., there is a marriage exemption to the charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place.

Many martial rape charges occur when there are marriage problems, when divorce proceedings are being undertaken, or when child custody issues are present. These allegations come about, according to some, as a means to ruin one’s case. Yet, allegations are taken very seriously and pursued if there is any evidence of it.

Proving Spousal Rape

Proving martial rape can be a difficult task for martial rape victims. The key issue usually revolves around consent, and being married creates a difficult burden to prove a lack of consent. Martial rape cases have the same burden as non-marital rape cases; sexual intercourse without consent given. However, that should not discourage martial rape victims from reporting the crime. Medical examinations can provide evidence of the rape, as well as documented evidence and accounts of the victim-spouse’s issues and problems with the suspect-spouse. If the rape allegations cannot be proven, typically prosecutors will try to bring “lower burden” cases such as sexual assault and battery.

Laws Governing Marital Rape

As discussed above, marital rape charges might not be sought and instead the charges of assault, batter or spousal abuse will be used. There is a marital exemption to the charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place. This statutory rape defense is the last of the martial rape exception. In California, spousal rape is treated just like non-marital rape, with similar elements of the crime such as sexual intercourse and a lack of consent.

How a Criminal Defense Lawyer Can Help

If you are accused of martial rape, you need to speak with a criminal defense lawyer immediately to assess your case and determine your defense course. While a troublesome marriage can be a factor leaning toward proving charges, the prosecution must prove beyond a reasonable doubt that rape occurred. An experienced criminal defense lawyer will ensure your rights are protected and ensure that the prosecution meets any required level of burden rather then having you plea to a crime you did not commit.