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Is there such a thing as “Spousal Rape” in Nevada?
Yes, and spousal rape (NRS 200.373) is punished the same as rape /sexual assault (NRS 200.366) of a non-spouse in Nevada. However, the law seems to indicate that marital rape a illegal only when force or threats of force are used. In contrast, a non-spouse can be convicted of rape even if no force or threats of force are use – all that matters is that the victim did not give consent or was too incapacitated to give consent, such as if the spouse was sleeping or heavily intoxicated.
Rape is a serious felony crime carrying a possible life sentence without parole. Potential defenses to spousal rape allegations are that the defendant was falsely accused or that no penetrative sex occurred.
What is spousal rape in Nevada?
Spousal rape is when one spouse employs use of force – or threats of force – to have sexual penetration with the other. NRS 200.373 states that “it is no defense to a charge of sexual assault that the perpetrator was, at the time of the assault, married to the victim, if the assault was committed by force or by the threat of force.”
So if one spouse penetrates his/her sleeping spouse, this is arguably not rape under state law because no force or threats of force were used. In short, it might not matter that there was no mutual matrimonial consent since the awake spouse was not being violent or threatening. (But if the sleeping spouse wakes and objects, it would definitely be rape for the other spouse to continue with the sex act by using force or threats of force.)
There is no case law in Nevada regarding spousal rape, so it is unclear how exactly courts interpret NRS 200.373.
Spousal and non-spousal rape are prosecuted the same in Nevada.
How can spousal rape charges be fought?
Three possible defense arguments that Nevada criminal defense lawyers may use in spousal rape cases are:
No force or threats were used. Under Nevada’s spousal rape law, marital sex is a crime only when force or threats of force were used. Unless the D.A. can prove the defendant battered, assaulted, or threatened the defendant with battery, then spousal rape charges should not stand.
No sex occurred. Often there is little or no evidence of whether sexual intercourse or a penetrative sexual act took place. As long as prosecutors cannot prove beyond a reasonable doubt that sex occurred, the case should be dismissed.
The defendant was falsely accused. It is not uncommon for spouses to accuse their husbands or wives of domestic violence or marital rape out of anger, jealousy, or revenge. Sometimes they levy false accusations to gain leverage in child custody or divorce proceedings. In these cases, the defense attorney would search for any recorded communications to show that the accuser had a motivation to lie. If the D.A. realizes the accuser lacks credibility, the case should be dropped.
Note that simply being married is not a consent to rape charges. There is no marital rape exemption or loophole other than that the rape must involve force or threats of force.
What are the penalties for spousal rape under NRS 200.373?
Note that sexual assault also carries lifetime supervision under NRS 176.0931. However, it may be possible to end it after 10 years.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.