Implied Consent and Spousal Rape

Spousal rape is any non-consensual sexual action that one spouse (usually the husband) forces on the other spouse (the wife). Marital rape is a serious crime in all fifty states and anyone charged faces the possibility of prison time and fees. In a situation of a marital rape, the victim has to rebut the presumption that the sexual act at issue was consensual. This supposition brings up the issue of implied consent, a common law theory that stated a wife could not be raped as her submission to her husband's sexual attention was an implied term of her marriage vows.

History of Implied Consent

The premise of implied consent is actually a contract theory. All contracts provide stated terms by which both parties agree to abide. The contract also includes underlying or implied terms that are understood by both parties to be a necessity to executing those stated duties. Historically, a marriage was seen as just a contract that also included implied duties, one of which was a wife's sexual submission to her husband. Common law followed this theory, making it impossible for a man to be convicted of raping his wife. The argument was that the wife gave implied sexual consent to her husband when she exchanged vows, and that this consent could not be revoked.

The Theory of Implied Consent Today

U.S. courts today have thrown out this theory entirely and it is now obsolete. An accused husband can attempt to assert that he has a right to his wife sexually in all situations. Husbands in the past have also argued that they had a right to batter their wives. Courts and statutes recognize that women are not chattel to be abused in any way. So a husband's assertion that his wife consented to all sexual acts when she married him will not be allowed as a defense against an allegation of marital rape.

Explicit Consent as a Defense

Although the accused cannot assert implied consent in a marital rape case, he is allowed to assert that the alleged victim explicitly consented to the sex act either verbally or with unambiguous actions. It is up to the jury to determine who is telling the truth through testimony and submitted evidence.

Finding an Attorney

If you have been accused of marital rape, you should contact an attorney immediately. Charges of marital rape are taken as seriously as a rape charge between strangers. The court no longer considers marital ties as a defense to forcible sexual battery. An experienced lawyer should be able to determine the proper and most effective defense to help you clear your name.