California Marital Rape Statutes

California's criminal code states that a spouse is guilty of marital rape under certain conditions. A spouse convicted of marital rape will face the same penalties as a person guilty of non-marital rape.

Current California Law

Although many of California's sexual assault provisions cover instances where the offender is not a spouse to the victim, it does specifically address rape of a spouse in Penal Code Section 262(a) which states:

Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following
circumstances:

   (1) Where the act is accomplished 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.
   (2) Where a person 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 the accused.
   (3) Where at the time of the offense the victim was unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
   (A) Was unconscious or asleep.
   (B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
   (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
   (4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
   (5) 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. As used in this paragraph, "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.

A broad interpretation of this statute allows an aggrieved spouse to even bring charges against an offending spouse for sexual intercourse perpetrated on him or her while they slept. The underlying premise is that something legally sanctioned becomes illegal when done without the other party's consent. Even without any physical injury, the court looks at the outrage of the victim to determine the culpability of the perpetrator, even if that perpetrator is a spouse.

Penalties

In addition to imprisonment in the state prison for three, six, or eight years, a person convicted under this statute may be subject to mandated parole which may include any restitution to the victim spouse either through monies or a discharge of marital property.

Talk to a Defense Attorney

If you face marital rape charges in California, you cannot claim a defense of marital status. You may not only be imprisoned, but may have to pay fines and restitution. Consult with an experienced attorney to protect your rights in this case.