Penal Code § 262 PC is the former statute that made spousal rape a criminal offense in California. The law was repealed on October 8, 2021, by Assembly Bill 1171.
Rape between spouses is now prosecuted largely the same as rape between non-spouses under Penal Code 261. Everything below reflects the now-repealed law.
The offense is sometimes referred to as marital rape and it falls under the umbrella of California’s
The language of PC 262 lists several instances in which sexual intercourse takes place without a spouse’s consent. For example, the law says there is no consent if intercourse is accomplished via physical force or sexual violence. Also, there is no consent if married women or men cannot resist sexual activity or sexual contact due to drugs or alcohol.
- a man makes his wife have sex with him via a threat of force and physical injury.
- a wife has sex with her husband after he is passed out from drinking too much.
- a man performs sexual acts on his wife and engages in acts of forced sex while she is asleep.
Criminal defense lawyers draw on several legal strategies and defenses to challenge spousal rape charges. Some of these include the attorney showing that:
- a spouse consented to sex,
- the defendant was not part of a married couple, and
- the defendant was falsely accused.
Our California criminal defense attorneys will highlight the following in this article:
- 1. When does a person commit spousal rape?
- 2. Can a defendant raise a legal defense?
- 3. What are the penalties for marital rape?
- 4. Can a person get a conviction expunged?
- 5. What are some related crimes?
1. When does a person commit spousal rape?
Rape of a spouse is a sexual offense where a person has sexual intercourse with his/her spouse with a lack of consent.
Penal Code 262 provides that rape in marriage occurs when a person accomplishes intercourse against a spouse’s will, because either:
- abusers use force, violence, duress, sexual abuse, or fear of bodily injury,
- the “victim” is unable to resist because of drugs, alcohol, or medication,
- the “victim” is unconscious of what is going on (for example, he/she is asleep or was defrauded),
- the abuser threatened to kidnap, injure, or kill the “victim,” or anyone else, if the victim did not have sex, and
- the abuser persuaded the spouse to believe that he/she was a public official and would imprison, arrest, or deport the spouse if no sexual relations took place.
The law defines “sexual intercourse” as any penetration, no matter how slight or how long it lasts. It is not necessary for ejaculation to occur.
The “victim” is considered to have consented only if he/she:
- acts freely and voluntarily, and
- knows the nature of the act he/she is agreeing to.
2. Can a defendant raise a legal defense?
An accused has the right to raise a legal defense to challenge a spousal rape allegation. Jurists say that a few common defenses include defendants showing that:
- the alleged victim consented.
- they were not a “spouse.”
- they were falsely accused.
Spousal rape can only take place if a person had sexual intercourse with his/her spouse without that person’s consent. This means it is always a defense for an accused to show that the alleged victim consented to sexual acts. Consent is a valid defense in all jurisdictions in the United States.
2.2 Not a spouse
Marital rape can only take place if the abuser and “victim” had the marital status of being spouses. Therefore, it is a valid defense for a defendant to show that he was not married to the victim. Note, though, that the accused could still be guilty under California’s rape laws.
2.3 Falsely accused
Unfortunately, people make false reports of spousal rape to law enforcement all the time. This is often done out of:
- jealousy, and/or
It is a defense, then, for an accused to say that he was unjustly blamed for sexual abuse. If the defense attorney can show the district attorney that the accuser had a motivation to lie, the case could be dropped.
3. What are the penalties for marital rape?
Spousal rape is charged as a felony in California. These types of sex crimes are punishable by:
- custody in state prison (as opposed to county jail) for up to eight years, and/or
- a maximum fine of $10,000.
4. Can a person get a conviction expunged?
People convicted under PC 262 cannot get the conviction expunged.
This is because California law does not allow expungements for crimes that result in a defendant serving prison time.
5. What are some related crimes?
There are three crimes related to marital rape. These are:
- rape – PC 261,
- oral copulation by the use of force – PC 287, and
- sexual battery – PC 243.4.
5.1 Rape – PC 261
California Penal Code 261 PC defines rape as using force, threats of force, or fraud as a means of having non-consensual sexual intercourse with another person to whom the offender is not married.
As with spousal rape, this crime is a felony that is punishable by up to eight years in state prison.
5.2 Oral copulation by the use of force – PC 287
Penal Code 287 PC is the California statute that makes it a crime for a person to engage in oral copulation with a minor via the use of force, violence, or fear.
“Oral copulation” is defined as any contact between the mouth of one person, and the sexual organ or anus of another.
As with spousal rape, ejaculation/orgasm is not an element of this offense.
5.3 Sexual battery – PC 243.4
Penal Code 243.4 PC is the California statute that prohibits sexual battery, also sometimes called sexual assault.
One commits this crime by touching the intimate parts of another person, against the person’s will, for the purposes of sexual gratification, arousal, or abuse.
Note that there is a strong prevalence of this offense and victims of sexual assault can contact the National Sexual Assault Hotline at 1-800-656-HOPE.
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. We serve clients throughout the state of California, including San Francisco, Los Angeles County, Sacramento, Santa Clara, San Jose, and more.
 California Penal Code 262 PC.
 CALCRIM 1000 – Rape or Spousal Rape by Force, Fear, or Threats.
 See same.
 California Penal Code 264 PC.
 See, for example, People v. Mason (2013) 218 Cal.App.4th 818. See also Don Thompson, California may end ‘spousal rape’ distinction in punishment, AP News (March 22, 2021) (re. AB-812, introduced by Assemblymembers and legislators Cristina Garcia and Evan Low and backed by San Francisco District Attorney Chesa Boudin in order to eliminate the “spousal rape exception.”). See also SB-530 introduced by Sen. Dave Cortese.
 CALCRIM 1082 – Oral Copulation with Person Under 18.
 California Penal Code 243.4 PC.