Wisconsin Marital Rape Laws

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Just like rape between strangers or acquaintances, marital rape—rape that occurs between spouses—is illegal in Wisconsin, and punished as a felony.

To learn more about assault laws in Wisconsin, see Sexual Assault in Wisconsin.

Marital Rape

In Wisconsin, marital rape occurs when one spouse (the defendant) compels the other spouse (the victim) to engage in sexual contact or penetration against the victim’s will, and also includes circumstances when the victim is mentally incapable of giving consent to sex (such as being in a coma or having passed out from drug or alcohol use).

The crime is broken into four categories—or “degrees”—according to the severity of the crime and its circumstances.

First degree sexual assault includes sexual contact or intercourse without the victim’s consent that causes pregnancy or great bodily harm to the victim. It also includes crimes committed through threats of violence, with the use or threat of bodily harm from a deadly weapon (or another object used in a way that leads the victim to believe that it is a deadly weapon), or when the defendant is aided by one or more other persons.

Second degree sexual assault includes sexual contact or intercourse without the victim’s consent when the offense causes moderate injury, illness, or mental harm that requires psychiatric care for the victim. It also includes sexual assaults against someone with a mental illness or deficiency which renders the victim incapable of giving consent, or when the victim is unconscious.

Third degree sexual assault includes certain nonconsensual sexual contact and nonconsensual intercourse not covered above.

Fourth degree sexual assault includes all other nonconsensual sexual contact.

The punishment for rape is the same for spouses who rape as for other offenders, although it may be more difficult for the victim to prove that she didn’t consent to her husband than it would be to prove non-consent with a stranger.

And it may be more difficult to prove certain elements of the crime. For example, a wife may have a harder time showing that a pregnancy resulted from an assault rather than consensual sex, especially if she is living with her spouse-assailant. In this example, if she can’t prove the pregnancy element, the husband may be convicted of lesser charges (say, third degree sexual assault rather than first).

However, it is not impossible to gain a conviction. The same wife might give testimony that she and her husband had separate bedrooms and did not engage in sexual contact, which might support her claim that the pregnancy resulted from an assault rather than consensual intercourse.

(Wi. Stat. Ann. § 940.225.)

Penalties

First degree sexual assault is a Class B felony, which incurs up to 60 years in prison.

Second degree sexual assault is a Class C felony, which incurs a fine of up to $100,000, up to 40 years in prison, or both.

Third degree sexual assault is a Class G felony, which incurs a fine of up to $25,000, up to ten years in prison, or both.

Fourth degree sexual assault is a Class A misdemeanor, which incurs a fine of up to $10,000, up to nine months in jail, or both.

See a Lawyer

If you are facing a sexual assault charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses apply to charges of felony assault and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of charges or a reduction in penalties, such as less prison time, no prison time, probation, and lower fines. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer on your side will be essential.

Help for Rape Survivors

If you are a victim of rape or sexual abuse, contact the Rape, Abuse & Incest National Network (RAINN) National Sexual Assault Online Hotline for help and local resources.

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