While marital rape is illegal nationwide, several states still treat it differently than other sexual assaults.
Marital or spousal rape is illegal in every state, but it’s been this way only since 1993. Until the mid-1970s, every state had a "marital exemption" that allowed a husband to rape his wife without fear of legal consequences. Although marital rape is illegal across the United States, certain states still treat spousal or marital rape differently from other rape offenses.
What Is Marital Rape or Spousal Rape?
The terms “marital rape” and “spousal rape” describe engaging in nonconsensual sexual activity with one’s spouse. The aggressor can be the husband or wife, and the victim may be a spouse of the opposite or same sex. In most states, any person who uses force, threats, violence, or other means to coerce sex from their spouse without consent commits rape.
However, a few states still have legal defenses and loopholes when it comes to marital rape prosecutions. South Carolina serves as the clearest example of a state that treats marital rape less harshly than nonmarital rape. Its law states that a person can't be guilty of criminal sexual conduct offenses (rape) against a cohabiting spouse. A cohabiting spouse can be charged only with spousal sexual battery, which carries lower penalties than criminal sexual conduct and imposes a 30-day reporting requirement for prosecution. If the spouses live apart, a prosecutor can charge an offending spouse only with first- or second-degree criminal sexual conduct, and only if the offense was reported to law enforcement within 30 days. (S.C. Code § 16-3-658 (2026).)
Is Marital Rape Punished the Same as Other Rape Crimes?
For the most part, states penalize marital and nonmarital rape crimes the same. However, at least a couple of states still have differences in the law for rape between spouses.
South Carolina, for instance, imposes a maximum 10-year sentence for spousal sexual battery accomplished by aggravated force by a cohabiting spouses. However, the same crime committed by a non-spouse (criminal sexual conduct) or a spouse living apart carries up to 20 or 30 years in prison. This law even prevents prosecutors from charging a cohabiting spouse with the harsher crime of criminal sexual conduct. (S.C. Code §§ 16-3-615, -652, -658 (2026).)
Another example involves Virginia law, which allows a judge to dismiss rape charges or a rape case against an offending spouse if the court decides dismissal will promote family unity and be in the victim's best interest. These options generally require the prosecutor's and victim's consent, and the offending spouse must complete a designated therapy course. If a case goes to trial and the offending spouse is found guilty, the judge can suspend the sentence to allow the offending spouse to complete therapy. (Va. Code §§ 18.2-61, 19.2-218.1 (2026).)
How Do Prosecutors Prove Marital Rape?
Prosecuting a marital rape case comes with complications, especially given the nature of the relationship between the defendant and victim. Victims of marital rape have the trauma of sexual assault by their partner, the person with whom they live, and often, the parent of their children—on top of the trauma all rape victims experience. Social stigma, the impact on children, and family shame might also add to the pressures a person faces when considering whether to testify in a case of marital rape. Jurors sometimes doubt that a husband actually raped his own wife.
However, prosecutors have tools available to help in these cases. Marital rape often involves domestic violence, which many offices now have experience prosecuting. Prosecutors might not need to rely solely on the victim’s testimony. Other evidence showing domestic violence in the relationship can be helpful to the case, especially when explaining to jurors the dynamics of control and power in intimate relationships. Prosecutors might also charge other crimes that occurred around or at the same time as the sexual assault, such as stalking, assault, battery, criminal threats, and strangulation.
What Are the Penalties for Marital Rape?
Many states penalize marital rape like any other rape. Typically, the applicable punishment will vary according to the severity of the circumstances of the crime. Rape that involves force, threats of force, weapons, or physical harm tends to carry the most severe penalties, with possible prison sentences of 25 to 50 years or more. Other types of rape not involving force or physical harm might have sentences of 10 to 20 years in prison.
As noted above, some states have more lenient penalties available for someone convicted of raping a spouse. South Carolina is a prime example, with a maximum penalty that is 10 to 20 years shorter for spousal rape than other types of rape.
Finding a Lawyer
Anyone facing rape charges should consult with a criminal defense attorney. A defense lawyer can help you understand the charges and possible penalties, develop a defense strategy, and protect your constitutional rights.
Help for Sexual Abuse and Rape Survivors
If you're a victim of rape or sexual abuse, contact the Rape, Abuse & Incest National Network (RAINN) for help and referrals to local resources. You can find their information online at rainn.org or by calling 800-656-HOPE (4673).