As a married person, you need to be aware of the laws surrounding spousal rape. In California, Penal Code 261 defines marital rape as any sexual act you commit against your spouse without their consent. You want to know the charges, penalties, and possible defenses you could use if arraigned in court. In California, spousal rape charges can fall under particular categories, including rape by force or violence, rape by threat, or rape by fraud.

Once convicted of spousal rape, you could face a sentence of up to 3, 6, or 8 years in prison. These sentences will vary depending on the nature of the crime. For instance, if your spouse suffered a bodily injury, the penalty could range from three to nine years in prison.

You want to take spousal rape allegations seriously and seek legal counsel immediately. Your lawyer will review your case, discuss possible outcomes, and help build solid defense strategies. Some possible defenses include consent, mistake of fact, or mistaken identity.

In Los Angeles, California, if you are facing charges of spousal rape, you want to have a skilled and experienced criminal defense attorney. At the Los Angeles Criminal Lawyer, we have a proven track record of defending defendants charged with sex crimes and will work tirelessly to protect your rights and freedom. Our lawyers will help you examine the evidence, interview witnesses, and build a strong defense on your behalf.

An Overview of Spousal Rape

Below are the various categories of spousal rape under California law:

  • Rape by violence or force. Spousal rape by force or violence happens when physical strength is used to carry out a sexual act on a spouse.
  • Rape by threat. You can be charged with rape by threat if you intimidate your spouse into fearing for their safety or the safety of others.
  • Rape by fraud. Rape by fraud occurs when you deceive your victim, such as by pretending to be someone else, to gain their consent.

When Does a Person Commit Spousal Rape?

Spousal rape charges now fall under Penal Code 261 after the law was repealed by Assembly Bill 1171. Elements that constitute this offense include the following:

  • You must have engaged in sexual intercourse with your spouse. Sexual intercourse is defined as any penetration, no matter how slight, of the genital or anal opening with a body part or object.
  • The sexual intercourse must have occurred without the spouse's consent. Consent means that your spouse voluntarily and freely agrees to engage in sexual intercourse. Consent to engage in sex cannot be given if your spouse is asleep, unconscious, under the influence of drugs or alcohol, or incapacitated in any other way. If your spouse cannot provide affirmative and voluntary consent, any sexual activity that occurs is considered rape.
  • You must be legally married to your victim during the sexual act. If the two of you are not legally married, the action cannot be considered spousal rape under California law.

You should know that even if your spouse initially consented to engaging in sex with you but later withdraws their consent and you continue to engage in the sexual act, you will be considered to have committed spousal rape. Consent can be withheld in many ways, such as by saying no, physically resisting, or showing non-verbal signs like crying or trying to leave.

For instance, if George uses physical force to have sex with his wife Jane against her will, he has committed spousal rape. Another example is threatening your spouse with losing custody of their children or financial support to coerce them into having sex.

Penalties for the violation of PC 261

 Violating Penal Code 261, California's spousal rape law, is a serious offense with severe penalties. If convicted, you could face imprisonment, fines, mandatory sex offender registration, and a criminal record that could impact your future employment and personal relationships. Generally, spousal rape convicts face a state prison sentence of three, six, or eight years.

The penalties for violating PC 261 depend on the following:

  • The severity of the offense.
  • Whether the sexual act consisted of violence or force.
  • Details of your criminal history.

Spousal rape is considered a felony offense in California.

Spousal Rape With Force or Violence

If you were involved in spousal rape with force or violence, you could face a state prison sentence of up to 8 years.

You Have a Previous Record of Spousal Rape

If you have a prior conviction for spousal rape, you could face even harsher penalties, including a life sentence in some cases.

You could also face significant fines of up to $10,000. The penalties assessed are in addition to any restitution that the court may order you to pay the victim. You are also required to register as a sex offender for life.

When registering as a sex offender, you will be required to provide the following personal information to the law enforcers:

  • Your address.
  • Your employment contract.
  • Your social media accounts.

You should notify the police of any changes in that information. A sex offender registration can have significant social and employment consequences, making it difficult for the defendant to find housing, work, and maintain personal relationships.

 Legal Defenses to Challenge Spousal Rape Allegations

 If you have been accused of spousal rape, there are legal defenses that you and your criminal defense attorney can use to challenge the allegations. Two common defenses are consent and insufficient evidence.

 Consent

In California, consent in the context of sexual intercourse between married persons means that your spouse engages in the activity knowingly and voluntarily. Your spouse must also be of sound mind to make that decision. You cannot be accused of spousal rape if your partner agrees to have sex with you.

Your criminal defense attorney, can use the defense of consent by showing that the sexual activity was consensual. This can be done by presenting evidence such as text messages, emails, or other communications between you and your partner that show that the spouse consented to the sexual activity. If you could also prove beyond a reasonable doubt that you believed that your spouse had agreed to engage in sexual activity with you, then you would not be guilty of spousal rape.

For example, if Jane, Peter’s wife, has a history of engaging in and initiating sexual activity with her husband while intoxicated, and she comes in on another day very drunk and begins the sex again, Peter may reasonably believe that his wife is consenting, even if she is too intoxicated to give valid consent. In such a case, Peter may have a valid defense to spousal rape charges.

 Insufficient Evidence

A prosecutor cannot accuse you of spousal rape if there is not enough evidence that sexual activity even occurred in the first place. The prosecution must prove beyond a reasonable doubt that sexual intercourse occurred and that it was non-consensual. If not, the case may be dismissed.

For example, if your spouse accuses you of spousal rape but there is no physical evidence, such as DNA or medical records, to support the claim, it may be difficult for the prosecution to prove the allegations beyond a reasonable doubt. In such a case, you may have a valid defense against the spousal rape charges against you.

 Not a Spouse

The court cannot convict you for spousal rape in California if you are not married to your victim. Marital rape is an offense under Penal Code 261 and happens between a married couple. You could, however, still face criminal charges for non-spousal rape if you engaged in non-consensual sexual activity with your victim.

Non-spousal rape is a felony offense in California, and if convicted, you could face up to eight years in prison. Other penalties you could accrue for non-spousal rape are the imposition of fines and mandatory sex offender registration.

For example, if Dydan had non-consensual sex with Faith, his long-term on-and-off girlfriend, and she reported that he had raped her, the court would categorize the offense as spousal rape. If Dydan can prove without reasonable doubt that he is not married to Faith, then the court cannot convict him of marital rape. However, a new case may be opened that involves non-spousal rape. 

Falsely Accused

False accusations of spousal rape are prevalent in California. You may be accused of marital rape due to miscommunication or a misunderstanding between you and your spouse. For example, if you thought your spouse had consented but she did not, your partner could also be jealous or angry and want to seek revenge against you by accusing you of raping them. They could also do this to gain an advantage in a divorce or child custody dispute so you can lose the case.

If you are falsely accused of spousal rape, you want to seek the services of a skilled criminal defense attorney who can help you investigate the allegations and build a strong defense.

For example, when Beatrice files for divorce and, while she is at it, makes a false claim that her husband Tim rapes her to gain the upper hand in the custody dispute of their children, In such a case, Tim can challenge the allegations by showing that Beatrice is lying or has ulterior motives for making false accusations.

 Expungement of PC 261

 Under Penal Code 261, spousal rape is classified as a felony. If convicted, you will be sentenced to serve time in prison. California law does not provide for the expungement of crimes that require you to serve time in prison.

Therefore, it is impossible for you to obtain an expunction if you are convicted of spousal rape in California. This means you will always have a conviction for marital rape on your criminal record, even if you have already served your sentence.

Reasons for Penal Code 261 Repealing in California

 In the 20th century, wives were considered to be their husbands' property upon marriage. Hence, there were some exemptions when it came to rape in marriage. This is because wives gave up their right to decide what could be done while engaging in sexual activities or their right to give consent once they got married,

However, in the 1980s, this changed, and these exemptions that gave husbands the right to act the way they pleased in matters of sexual activities as a couple were uplifted by over 49 states.

In 2021, Penal Code 261 was repealed. This was achieved through the formation of feminist groups, and now spousal rape is prosecuted under the same laws as non-spousal rape.

 Related Crimes to Spousal Rape

 In California, there are crimes related to spousal rape, and if you are found guilty of any of them, you could serve similar sentences as those for marital rape. They include the following:

  • Oral Copulation done by use of violence or force
  • Rape
  • Sexual Battery

Rape – PC 261

Rape under PC 261 is similar to spousal rape in that it involves you having non-consensual sexual intercourse with your victim. Unlike marital rape, rape is a crime between people who are not married or with someone with whom you do not have a domestic relationship.

You are guilty of rape if the non-consensual sexual activity involves using threats, fraud, or force to make your victim compliant with your sexual advances. Once convicted of rape, you face a sentence of 3, 6, or 8 years in prison. The different sentences are dependent on the severity of your victim's injuries. The penalties can be even more severe if the victim is a minor.

Some defenses you could engage in when arraigned in court for a rape crime accusation include consent, insufficient evidence, and mistaken identity. You want to consult a criminal defense attorney if you face rape charges.

 Oral copulation by the use of violeforce – PC 287

Under Penal Code 287, oral copulation by force is an offense similar to spousal rape in that it involves non-consensual sexual activity. Oral copulation, however, requires contact between the mouth of the defendant and the genitalia or anus of the victim. You are guilty of this crime when the sexual activity is done against the will of your victim through violence or force.

If convicted, you could face imprisonment for up to 3, 6, or 8 years. Some defenses that could aid in dismissing or reducing the penalties you could accrue if found guilty when accused of oral copulation by the use of violence or force include the victim's consent, a lack of sufficient evidence, and mistaken identity.

Sexual battery – PC 243.4

In California, Penal Code 243.4 classifies sexual battery as a misdemeanor. Sexual battery involves any non-consensual sexual touching of a victim for sexual arousal, gratification, or abuse.

Also known as sexual assault, the offense involves touching intimate body parts such as the genitals, breasts, or buttocks, either over or under the clothing. This crime, however, is different from spousal rape in that it does not require sexual intercourse.

The penalties you could accrue if convicted can vary depending on the circumstances of the offense. For instance, you face severe punishment if you commit an offense against a minor. In general, sexual battery is considered a misdemeanor offense and can carry a sentence of up to six months in jail and a fine of up to $2,000, However, if the offense is committed against a spouse, it can be charged as a felony and may carry a sentence of up to four years in state prison.

There are several defenses that a defendant can use against a charge of sexual battery, including:

  • Lack of intent - you could argue that the touching was accidental and not intended to be sexual.
  • Consent - you could prove that the victim consented to your touching them by sharing any text or call between you.
  • Mistaken identity - you could argue that you did not commit the offense. You could resemble the actual perpetrator, and therefore, you should have your lawyer do some background check to know why you have been accused and were not involved in the crime enactment.

The prosecution must prove that the touching was non-consensual and that you intended to commit the offense to be found guilty. If the prosecution fails to prove either of these elements beyond a reasonable doubt, you may be found not guilty.

 Contact a Los Angeles Criminal Lawyer Near Me

 If you or someone you know is facing charges of spousal rape, you want to understand the severity of the situation. Marital rape is a serious crime under California law, and conviction can result in harsh penalties, including imprisonment and fines. If you are accused of spousal rape, seek legal representation from a reputable lawyer. A criminal defense attorney can help protect your rights and build a solid defense to fight the charges against you.

At the Los Angeles Criminal Lawyer, we are a team of experienced legal professionals dedicated to defending clients against spousal rape and related charges. Our attorneys deeply understand California criminal law and can provide the guidance and support you need during this difficult time.

By working with us, you can benefit from our extensive criminal defense knowledge, resources, and experience. We can help you navigate the legal system, build a strong defense, and fight to protect your rights and freedom. Contact us at 310-502-1314 today to schedule a consultation and learn how we can help you.