California Spousal / Marital Rape Laws
Penal Code 262

Is it a crime in California to commit rape against one’s wife or husband? Yes.

Penal Code 262 makes spousal rape a serious felony, and is prosecuted much like non-marital rape cases.

"Spousal rape" not only falls under the umbrella of California’s rape laws but under California’s domestic violence laws as well. This means that someone convicted of this offense is subject to many of the same penalties and punishments as (1) an individual convicted of Penal Code 261 PC "rape"¹...and (2) an individual convicted of domestic violence.

California Penal Code 262 PC spousal rape

Marital rape takes place when a man or woman engages in an act of nonconsensual sexual intercourse with his/her spouse.² Many people don’t even realize that this is a crime...and the fact is that it wasn’t always. Now, however, California rape laws protect spouses from unwanted sexual intercourse in the same way that they protect everyone else.

In the event that you engage in sex (or in any other sexual activity) against the will of your spouse with the specific intent to cause

• sexual arousal,



• sexual gratification, or



• sexual abuse,

you may additionally or alternatively face charges for California Penal Code 243.4 sexual battery (also commonly referred to as sexual assault).

How does the prosecutor prove that I am guilty of marital rape?

In order to prove that you are guilty under California spousal rape laws, the prosecutor must prove four facts (otherwise known as "elements of the crime")³:

1. that a male and female engaged in sexual intercourse,



2. that you were married to the alleged victim at the time,



3. that the act of intercourse was against the will of your spouse, and



4. that the sex was accomplished by means of force or fear, or that it took place while the alleged victim was prevented from consenting due to extreme intoxication and/or the fact that he/she was unconscious⁴.

Penalties, punishment, and sentencing for Penal Code 262 PC spousal rape

California marital rape laws make the crime a felony.⁵ Penalties may include any or of all of the following:

• formal probation,



• three, six, or eight years in the California State Prison. This prison sentence could increase by three to five years if you inflict a great bodily injury or harm on your spouse.⁶ It could also increase to a maximum life sentence if you have been convicted for multiple sex crimes⁷ or if this is your third "strike" under California’s Three Strikes Law⁸,



• up to $10,000 in fines⁹, and



• a lifetime duty to register as a sex offender pursuant to California Penal Code 290 PC¹⁰.

Fighting a Penal Code 262 PC spousal rape charge

One spouse may falsely accuse the other of marital rape for a variety of reasons...jealousy, anger, revenge, or to gain leverage in a divorce or custody proceeding. As Michael Scafiddi, a top San Bernardino criminal defense lawyer explains¹¹, "I’ve seen so many clients falsely accused of (and wrongly arrested for) sex crimes. Emotionally charged allegations like spousal rape require an extra thorough investigation to reveal the true motives behind the accusation."

If you have additional questions about California spousal rape charges, or you would like to discuss your case confidentially with one of our California sex crimes defense attorneys, we invite you to contact us.

We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.

You may also find helpful information in our related articles on California Penal Code 261 PC Rape, Penal Code 243.4 PC Sexual Battery, and California Domestic Violence Laws.

Legal References:

¹California Penal Code 261 PC punishes rape under the same circumstances as Penal Code 262 spousal rape (endnote 2, below) when the offense is committed against a person who is not the spouse of the perpetrator.

²California Penal Code 262 PC – Spousal rape. ("(a) 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 it 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 a person is at the time 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....")

³California Jury Instructions – Criminal. CALJIC 10.00 – Spousal rape. ("In order to prove this crime [i.e., California spousal rape], each of the following elements must be proved: [1] A male and female engaged in an act of sexual intercourse; [2] The two persons were married to each other at the time of the act of sexual intercourse; [3] The act of intercourse was against the will of the alleged victim; [4] The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury [to the alleged victim] [or] [to another person].

⁴In addition to the final element in endnote 3 above, spousal rape can also occur by means of fraud. See endnote 2, Penal Code 262 PC spousal rape above, subdivisions 2 and 3 regarding intoxication and unconsciousness.

⁵California Penal Code 264 – Spousal rape, punishment. ("(a) Rape, as defined in Penal Code Section 261 [rape] or 262 [spousal rape], is punishable by imprisonment in the state prison for three, six, or eight years.")

⁶California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including Penal Code 262 PC spousal rape] shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony [including California Penal Code 262 PC spousal rape] shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.") These sections apply to all California felonies, including Penal Code 262 spousal rape.

⁷California Penal Code 667.61 -- Felony sex offenses; punishment; specified circumstances; striking offenses; probation. ("(a) Any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life. (b) Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life. (c) This section shall apply to any of the following offenses: (2) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Penal Code Section 262 PC [California spousal rape accomplished by force or fear]...(3) Rape, spousal rape, or sexual penetration, in concert, in violation of Penal Code Section 264.1...") The code goes on to list a variety of crimes that will lead to these potential prison sentences.

⁸California Penal Code 667.5 – Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (3) Rape as defined in...paragraph (1) or (4) of subdivision (a) of Penal Code Section 262 PC [California spousal rape accomplished by means of force or fear]. See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses [such as California spousal rape].")

⁹California Penal Code 672 -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.") This is why an individual convicted of California Penal Code 262 spousal rape faces a maximum $10,000 fine.

¹⁰California Penal Code 290 -- Sex Offender Registration Act. ("(c) The following persons shall be required to [fulfill their lifetime duty to register as a sex offender pursuant to Penal Code 290 PC]: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of...paragraph (1) of subdivision (a) of Section 262 [California spousal rape] involving the use of force or violence for which the person is sentenced to the state prison. Failure to register as a sex offender under Penal Code 290 is a separate felony.

¹¹Michael Scafiddi, a top San Bernardino criminal defense lawyer, is a former law enforcement officer. He now uses that inside knowledge to help defend clients accused of California sex crimes, as well as other criminal charges in San Bernardino and Riverside Counties. Scafiddi routinely makes appearances at the Murrieta Southwest Justice Center and in Fontana, Banning, Barstow, Victorville, and Joshua Tree. Contact us for more information about his impeccable defense record.

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