Is it possible to rape one’s own wife or husband? The answer…under California law…is yes.1 While this fact by itself may not be surprising, it may surprise you to learn that California law, Penal Code 262 PC, makes so-called spousal rape a serious felony…and punishes it as harshly as it punishes other kinds of rape.2
“Spousal rape” (also known as marital rape) not only falls under the umbrella of California’s rape laws…but also falls 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:
- An individual convicted of Penal Code 261 PC “rape”3 AND
- An individual convicted of domestic violence.
Actions that can lead to spousal rape charges include both obvious and not-so-obvious scenarios. Here are some examples:
- A husband uses physical force to make his wife have sexual intercourse with him;
- A wife whose husband is not a U.S. citizen threatens to divorce him and make sure his green card gets revoked if he does not have sex with her; and
- A husband has sex with his wife while she is passed out after a drinking too much.
Despite the fact that the circumstances surrounding the two crimes are often very different, the punishment for spousal rape in California is the same as the punishment for rape of a stranger. Potential penalties include three (3), six (6) or eight (8) years in California state prison.4
Not only that…but in some cases of spousal rape, you may be required to register as a California sex offender.5
By their very nature, marital rape accusations are generally made by someone who has a very close relationship with the person they are accusing. Sometimes these allegations are blatantly false…and are motivated by jealousy, revenge, general turmoil in a marriage…or desire to gain an advantage in a divorce proceeding. Other times they are simply the result of the kind of misunderstanding that often occurs in a marriage.
The end result is that innocent people are often falsely accused of this very serious crime. A number of legal defenses can help you beat the charges when you find yourself in this situation. These include asserting the position that:
- The accusations are false,
- The spouse making the accusations actually consented to intercourse, and
- The evidence is insufficient to prove the crime.
If someone accuses you of spousal rape, it is important to consult with a California criminal defense attorney as soon as possible. While it may be tempting to ignore the accusations-particularly if you know they are false-just because the accuser is someone close to you…that can be a very dangerous strategy.
In order to help you better understand California law on spousal rape / marital rape, our California criminal and sex crimes defense lawyers will address the following:
- 1. Overview of California Penal Code 262 PC Spousal Rape
- 2. How Does the Prosecutor Prove that I am Guilty of Marital Rape?
- 3. What are the Penalties for Spousal Rape under Penal Code 262 PC?
- 4. What Legal Defenses Can I Use to Fight a California Marital Rape Charge?
- 5. California Spousal Rape and Related Offenses
- 6. Civil Lawsuits for Spousal Rape in California
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
Spousal rape — also known as marital rape — takes place when a man or woman engages in an act of sexual intercourse with his/her spouse, without the spouse’s consent.6
Many people don’t even realize that this is a crime…and the fact is that it wasn’t always. Until the late 1970s, spouses were exempted from most rape laws, meaning that it wasn’t a crime to rape your husband or wife.7 But that has changed…and now spousal rape is a crime in all 50 states.8
In some states the penalties for spousal rape are less than those for rape of someone other than a spouse. But in California, rape laws protect spouses from unwanted sexual intercourse in the same way that they protect everyone else…and the penalties for spousal rape are almost exactly the same as those for “ordinary” rape under Penal Code 261 PC.9
What does it mean for sexual intercourse to take place without the spouse’s consent? According to Penal Code 262 PC, California’s spousal rape law, it means that one of the following things is true:10
- 1. The intercourse is accomplished against the spouse’s will, using either:
- a. Force,
- b. Violence,
- c. Duress (which means a threat (direct or implied) that is sufficient to coerce a reasonable person to perform…or agree to allow…an act which s/he would not otherwise have performed or allowed),
- d. Menace (a threat, declaration, or act that shows an intention to inflict an injury upon another), or
- e. Fear of bodily injury;
- 2. he spouse is unable to resist due to drugs, alcohol, medication, or any other intoxicating substance…and the defendant knows or reasonably should know this;
- 3. The spouse is unconscious of what is going on…either because s/he is unconscious or asleep… or because s/he is not aware that the act is going on… or because s/he does not understand what is happening because the defendant has defrauded him/her (told him/her something that isn’t true);
- 4. The defendant persuades the spouse to have intercourse by threatening to retaliate against him/her or anyone else by kidnapping them or inflicting extreme pain, serious bodily injury, or death upon them…as long as there is a reasonable possibility the threat can be carried out.
- 5. The defendant persuades the spouse to have intercourse by making him/her believe that s/he is a public official and will use that authority to incarcerate, arrest, or deport the spouse.
Example: Paul and Maria are married. One night they go out to a bar with friends, and Maria gets very drunk. She passes out in the car on the ride home, and Paul has to carry her inside. While Maria is still passed out, Paul has sex with her.
Paul may have committed marital rape…Maria was unable to resist sexual intercourse due to her drunken state, and Paul knew this.
Example: Bill and Nancy are married. Bill is almost six and a half feet tall and weighs 250 pounds, whereas Nancy is barely five feet tall and around one hundred pounds. One night Nancy demands that Bill have sex with her and threatens to beat him to within an inch of his life if he does not.
Nancy probably can’t be convicted of marital rape. She did threaten Bill to convince him to have sex with her…but her threat was not one that she could reasonably carry out.
Example: Hank works as a custodian in an office of the US immigration authorities. His wife Lee is from China and is in the US on a visa. At some point Lee’s visa expires, and she remains in the US illegally. Hank regularly convinces Lee to have sex with him by telling her that otherwise he will have her deported.
Hank may be guilty of marital rape. Even though he probably is not capable of getting Lee deported, he made her believe that he was…and used that authority to convince her to engage in sexual intercourse.
If you have sex with the person you are married to under any of these circumstances… prosecutors could charge you with spousal rape under California’s marital rape statute (Penal Code 262 PC).11
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”)12 :
- that the defendant had sexual intercourse with the alleged “victim,”
- that the defendant and the alleged “victim” were married to each other at the time,
- that the “victim” did not consent to the intercourse, AND
- that the intercourse was accomplished by one of the means described in Section 1 above.13
Let’s take a closer look at some of the concepts in the above elements of the crime.
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.14
The “victim” is considered to have consented only if s/he acts freely and voluntarily…and knows the nature of the act s/he is agreeing to.15 This is why it is a crime to have sex with your spouse if s/he is intoxicated or unconscious…because in that case s/he cannot understand the act and freely agree to it.
What happens if the alleged “victim” initially consents to sex-but then changes his/her mind? In that case, the act is considered to take place without his/her consent…but ONLY if:
- The alleged victim communicates to the defendant that s/he objects to the intercourse and attempts to stop it,
- The alleged victim communicates the objection in a way that a reasonable person would understand as showing a lack of consent, AND
- The defendant forcibly continues the act of intercourse despite the objection.16
Finally, if the alleged victim requests that the defendant wear a condom or use birth control…that is not considered enough to show that s/he actually consented to have sex.17
Example: Ralph wants to have sex, but his wife Maureen does not. Ralph has hit Maureen in the past. He threatens to beat her severely if she does not have sex with him. Maureen agrees and asks that Ralph wear a condom.
Ralph may be guilty of spousal rape because he used threats of great bodily harm to convince Maureen to have sex with him. The fact that Maureen requested he wear a condom does not show that her consent was legitimate.
California marital rape laws make the crime of spousal rape a felony.18 Penalties may include any-or all-of the following:
- formal probation (but as of January 1, 2017, this is not available in cases of either forcible spousal rape or rape of an unconscious or intoxicated spouse),
- three (3), six (6), or eight (8) years in the California State Prison. This prison sentence could increase by an additional three (3) to five (5) years if you inflict a great bodily injury (defined as a significant or substantial physical injury) on your spouse.19
- if spousal rape is accomplished by force, fear, or threat of death or serious bodily injury…the prison sentence could even increase to a maximum life sentence if you have been convicted for multiple sex crimes20 …or if this is your third “strike” under California’s Three Strikes Law21,
- up to ten thousand dollars ($10,000) in fines22 , and
- if marital rape is accomplished by force or violence, a lifetime requirement of tier three registration as a sex offender pursuant to Penal Code 290 PC23 .
This last penalty may be one of the harshest on the list…since it imposes a duty that lasts for an entire lifetime, and because failure to register as a sex offender under Penal Code 290 is a separate felony.24
Fortunately, there are certain legal defenses that can be very helpful in fighting a California spousal rape charges. Some of these are:
Many marriages go through tense and difficult times. During these times, 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 top San Bernardino criminal defense lawyer Michael Scafiddi25 explains,
“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 defense investigation to reveal the true motives behind the accusation.”
If the defendant’s spouse actually consented to sexual intercourse, then spousal rape did not occur.26 Even if the spouse initially consented but later changed his or her mind…the defendant still can’t be convicted of this charge unless s/he clearly communicated that s/he had changed his or her mind and wanted the sex to stop.27
And what if your spouse didn’t actually consent to intercourse…BUT you had good reason to believe s/he had consented? In this case, you also can’t be convicted of spousal rape.28 This is a variation on the general legal defense of “mistake of fact.”
In many cases, there will be no physical evidence to corroborate an accusation of spousal rape…particularly if the spouse who claims to have been raped didn’t seek medical attention. And an alleged spousal rape will usually take place in the married couple’s home, which means there’s a good chance no third party overheard or witnessed the crime.
So a spousal rape case may simply be based on “he said/she said” allegations. The jury cannot convict if there is any reasonable doubt about who is telling the truth. So in this sort of situation, the legal defense of insufficient evidence may apply.
You violate Penal Code 261 PC, California’s rape law, when you have sexual intercourse with anyone EXCEPT your spouse without their consent…accomplished by means of threats, force or fraud, just as with spousal rape.29
Like spousal rape, non-spousal rape is a felony, punishable by up to eight (8) years in the state prison30 …and by possible lifetime registration as a registration as a sex offender if the defendant used force.31
Like California rape and spousal rape, oral copulation by force or fear takes place when an individual uses force, violence, menace, or duress to engage in a sexual act with another….but in this case the act would be oral sex, not sexual intercourse.32 Oral copulation by force is punished the same way regardless of whether or not the alleged victim is married to the defendant.
If your spouse alleges that you had both non-consensual intercourse and non-consensual oral sex with him/her….you may be charged with both spousal rape and oral copulation by force.
Oral copulation by force is a felony, like California spousal rape, and may be punished by three (3), six (6) or eight (8) years in state prison.33 And unlike California spousal rape, it always leads to lifetime sex offender registration, regardless of the specific facts of how it was carried out.34
In the event that you are accused of touching your spouse’s genitals, buttocks or breast (if your spouse is female) against his/her will, with the specific intent to cause
- sexual arousal,
- sexual gratification, or
- sexual abuse,
you may also face charges for California Penal Code 243.4 PC sexual battery (also commonly referred to as sexual assault).35
For example, if the allegations are that the rape occurred through the use of violence, you could face charges for inflicting corporal injury on a spouse (Penal Code 273.5 PC) Penal Code 273.5 occurs when someone willfully inflicts a bodily injury on their spouse…and the injury results in a “traumatic condition” like a visible wound.37
Another possible charge is the misdemeanor offense under California domestic battery law (Penal Code 243e1 PC).38 Penal Code 243e1 may be charged if there is any allegation that you willfully inflicted any amount of force or violence…even a very small amount that left no mark or wound…on your spouse.39
Although rare, it is possible for a spouse to sue his or her spouse for rape. Usually it makes sense to do this when there is separate property against which to recover for damages, though recovery from community assets is possible.
- Medical bills,
- Psychological counseling,
- Lost wages, and
- Anxiety, emotional distress and pain and suffering.
In truly reprehensible cases, the spouse may also be able to recover punitive damages.
Can a victim sue if I was found “not guilty” in a criminal trial?
Yes. A criminal conviction is not required in order for a crime victim to sue for damages in California.
In a civil case, liability does NOT need to be established beyond a reasonable doubt. Instead the plaintiff needs to convince nine of the 12 jurors by a preponderance of the evidence that her spouse engaged in wrongful, non-consensual sexual conduct.
“Preponderance” of the evidence means that the jurors think it is “more likely than not” that the defendant did it — meaning they are at least 51% sure.
Call us for help…
If you or a loved one is charged with Penal Code 262 PC spousal rape and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
If you are charged in Nevada, we invite you to read our page on Nevada spousal rape laws.
- California Penal Code 262 PC – Rape of a spouse; elements; conditions of probation; fines, payments, or restitution [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. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress. (c) As used in this section, “menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.”)
- California Penal Code 264 PC – Rape [including spousal rape]; punishment. (“(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.”)
- See same (applies both to Penal Code 261 PC rape AND Penal Code 262 PC spousal rape).
- See same (applies both to Penal Code 261 PC rape AND Penal Code 262 PC spousal rape).
- California Penal Code 290 — Sex Offender Registration Act. (“(c) The following persons shall be required to register: 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 involving the use of force or violence for which the person is sentenced to the state prison, . . . .”)
- California Penal Code 262 PC – Spousal rape, endnote 1, above.
- See Thadeus Greenson, An evolution of law: spousal rape recently prosecutable, The Times-Standard, Mar. 23, 2008.
- See same.
- See same. See also California Penal Code 264 – Rape [including spousal rape]; punishment, endnote 2, above.
- California Penal Code 262 PC — Spousal rape, endnote 1, above.
- See same.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1000 – Rape or Spousal Rape by Force, Fear, or Threats. (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant had sexual intercourse with a woman; 2 He and the woman were (not married/married) to each other at the time of the intercourse; 3 The woman did not consent to the intercourse; AND 4 The defendant accomplished the intercourse by <Alternative 4A-force or fear> [force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.] <Alternative 4B-future threats of bodily harm> [threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.] <Alternative 4C-threat of official action> [threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.].”)
- See same. See also CALCRIM 1002 – Rape of Intoxicated Woman or Spouse; CALCRIM 1003 – Rape of Unconscious Woman or Spouse.
- CALCRIM 1000 – Rape or Spousal Rape by Force, Fear, or Threats. (“Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]”_)
- See same, Rape or Spousal Rape by Force, Fear, or Threats. (“[To consent, a woman must act freely and voluntarily and know the nature of the act.]”)
- See same, Rape or Spousal Rape by Force, Fear, or Threats. (“[A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if: 1 She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act; 2 She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; AND 3 The defendant forcibly continued the act of intercourse despite her objection.]”)
- See same, Rape or Spousal Rape by Force, Fear, or Threats. (“[Evidence that the woman (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]”)
- California Penal Code 264 PC – 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.”)
- California Penal Code 12022.7 PC — 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.
- California 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.
- California Penal Code 667.5 PC – 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].”)
- California Penal Code 672 PC — 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.
- California Penal Code 290 — Sex Offender Registration Act. (“(c) The following persons shall be required to … 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.”
- California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender]. (“(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. (c) If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in subdivision (b) or this subdivision shall apply whether or not the person has been released on parole or has been discharged from parole.”)
- San Bernardino criminal defense lawyer Michael Scafiddi 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, Palm Springs, and Joshua Tree.
- CALCRIM 1000 – Rape or Spousal Rape by Force, Fear, or Threats. (“To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The woman did not consent to the intercourse; . . . .”)
- See same, Rape or Spousal Rape by Force, Fear, or Threats. (“[A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent [and therefore is considered rape in California] if: 1 She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act; 2 She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; AND 3 The defendant forcibly continued the act of intercourse despite her objection.]”)
- See same, Rape or Spousal Rape by Force, Fear, or Threats. (“[The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.]”)
- See Penal Code 261 PC — Rape defined. Compare to Penal Code 262 PC, California’s spousal rape law, which only applies to rape of a spouse.
- California Penal Code 264 – Rape, punishment [applies to both Penal Code 261 PC rape and Penal Code 262 PC spousal rape].
- California Penal Code 290 — Sex Offender Registration Act.
- California Penal Code 287 — Oral copulation. This law prohibits engaging in oral copulation under the same type of circumstances as spousal rape under Penal Code 262 PC.
- See same. (“(2)(A) Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”)
- California Penal Code 290 PC – Sex Offender Registration Act. (“The following persons shall be required to register: 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 Section 266j, 267, 269, 285, 286, 288, 287 [oral copulation by force] . . . .”)
- California Penal Code 243.4 — Sexual battery [may be charged along with California spousal rape]. (“(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.”)
- See same, subsections (a) – (e).
- California Penal Code 273.5 PC – Willful infliction of corporal injury/ violation; punishment [may be charged along with spousal rape]. (“(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”)
- California Penal Code 243(e)(1) – Domestic battery [may be charged along with spousal rape]. (“(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.”)
- California Penal Code 242 PC – Battery defined. (“Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.”) It is easy to imagine a situation in which an alleged victim of spousal rape also asserts that a battery occurred.