Spousal Rape
C.R.S. 18-3-402

Colorado law defines "spousal rape" or "marital rape" as sexual intercourse or penetration of a spouse without consent. This is not treated as a separate offense, but rather is prosecuted as a standard sexual assault. However, because of the domestic component, courts impose both sexual assault and domestic violence penalties.

In this article, our Colorado criminal defense lawyers explain:

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1. What is Spousal Rape in Colorado?

Spousal rape involves sex with a spouse without their consent. In Colorado, spousal rape is prosecuted like other sexual assault crimes with additional charges because it involves a domestic relationship. In the past, spousal rape was not a crime. However, Colorado law now gives spouses the same legal protections against sexual assault as other individuals.

Rape is considered sexual assault in Colorado, under C.R.S. 18-3-402. Any sexual intrusion or sexual on a victim without consent is sexual assault.This includes committing sexual assault by submission of the victim or knowledge that the victim is incapable of consent. If this type of sexual assault occurs between spouses, the perpetrator may be charged with spousal rape.

2. Is There a Marital Exemption to Rape Charges?

In the past, spousal rape was not considered a crime. However, spousal rape is now a criminal offense in every state, including Colorado. There is no exemption to rape charges just because someone happens to be the victim's spouse. Additionally, consensual sex in the past is not a defense to marital rape.

There is a type of marital exemption in statutory rape cases. In Colorado, statutory rape involves sex with a minor. Even if the minor said they consented to sex, they are not legally able to consent to sex with an adult because of their age. Statutory rape involves sex with someone older than 15 but under 17 if the offender is at least 10 years older, or someone under the age of 15 when the offender is 4 or more years older. However, it is a defense to statutory rape charges if the couple is married.

3. How Does the Prosecutor Prove that I am Guilty of Spousal Rape?

A prosecutor does not need to a specific violation of spousal rape. Instead, they have to prove the elements of sexual assault and an intimate relationship to qualify as domestic violence.1 A spouse falls within the definition of “intimate relationship,” so the prosecutor would only need to demonstrate that a sexual assault occurred under C.R.S. 18-3-402.

Sexual assault occurs when any actor knowingly inflicts sexual intrusion or sexual penetration on a victim when:

  1. The actor causes submission of the victim by means of sufficient consequences reasonably calculated to cause submission against the victim's will;
  2. The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or
  3. The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.

4. What are the Penalties for Spousal Rape?

The penalties for spousal rape depend on a number of factors, including the defendant's domestic violence and criminal history and whether the victim suffered an injury. Rape is considered an "extraordinary risk" crime in Colorado, which can lead to increased sentencing.

Class 4 Felony (2-8 years in prison and a fine of up to $500,000), if:

  • No force was used
  • The victim did not suffer bodily injury

Class 3 Felony (4-16 years in prison and a fine of up to $750,000), if:

  • The victim was drugged without their consent
  • The defendant caused submission through physical violence or force
  • The victim was threatened with imminent death, serious bodily injury, extreme pain, or kidnapping
  • The victim was threatened with future retaliation against the victim or other person

Class 2 Felony (8-24 years in prison and a fine of up to $1 million), if:

  • Sexual assault was aided or abetted by other persons
  • The victim suffers serious bodily injury
  • The defendant was armed with a deadly weapon or caused the victim to believe they had a deadly weapon

Spousal rape involves domestic violence because of the relationship between the alleged victim and perpetrator. Spousal rape convictions may result in additional penalties, including:

  • Domestic violence treatment or counseling
  • Restraining orders
  • Restrictions on owning or possessing a firearm
  • Registration as a sex offender

5. How Do I Defend Myself Against Spousal Rape Charges?

Fights and disputes between married couples can get very heated, especially if there is suspected infidelity or they are considering a divorce. In these heated arguments, spouses can say or do things they would never normally do. This includes making false allegations of sexual assault.

You may think that you have no defense to claims of spousal rape, however, there may be a number of possible defenses in your case. It is also the prosecutor's burden of proof to show that you are guilty beyond a reasonable doubt. Possible defenses may include showing no sexual intercourse occurred or the spouse consented to sex. Your Colorado criminal defense attorney will examine the evidence, conduct an investigation of the incident, and identify all available defenses in your case.

6. Related Offenses

Spousal rape may be charged in addition to other domestic violence charges. Other related offenses include unlawful sexual contact if no intercourse occurred, or domestic violence assault if the assault was not sexual in nature.

6.1 Unlawful Sexual Contact, C.R.S. 18-3-404

Unlawful sexual contact is considered less serious than sexual assault. This involves unwanted touching of another person's intimate parts or causing another to touch your intimate parts without consent. Groping, fondling, or causing another person to touch your genitalia, buttocks, or breasts may be charged as a Colorado class 1 misdemeanor. Penalties can include up to 2 years in jail. If the sexual contact involved force, threat, or drugging the other person, it could result in a felony with up to 8 years in prison.

6.2 Domestic Violence Assault, C.R.S. 18-6-801

In Colorado, an individual suspected of domestic violence assault may be charged with the crime of assault, with added charges if it involves domestic violence. Assault in Colorado involves intentional, knowing, or reckless bodily injury to another person. If the assault occurs between individuals who are or have been in an intimate relationship, the assault may be considered domestic violence.

Domestic violence results in mandatory arrest in Colorado. Even if the people involved do not want to press charges, at least one person will be arrested. Penalties for domestic violence include up to 32 years in prison, a fine of up to $750,000, restraining order, domestic violence counseling, and firearm restrictions.

Call us for help...

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If you were accused of sexual assault or rape by your spouse, please contact us at Colorado Legal Defense Group. Our caring Colorado DUI lawyers have many years of experience representing clients who have been involved in sexual assault and domestic violence disputes. We are among the best Colorado criminal defense attorneys to call. Contact us today for a free consultation by phone or in-person or in our Denver law office.



Legal References

  1. C.R.S. 18-6-800.3(1)

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