Spousal Rape – Can You Be Charged?

Guide To Penal Code 262

California law treats rape of a spouse under penal code 262 no differently and just as harshly as the rape of anyone else.

Overview of Penal Code 262

Rape is nonconsensual sex with spousal rape also considered an act of domestic violence, which carries additional penalties.

To be convicted under Penal Code 262 or spousal rape, the DA must prove all of the following elements comprising this offense:

  1. You engaged in an act of intercourse.
  2. With a person to whom you were married.
  3. Without the consent of the spouse and,
  4. By the use of force1, violence, duress2, menace3, or threat of bodily harm to the spouse or directed toward anyone else and which threat has the reasonable likelihood of being carried out.
  5. Or, the spouse was rendered incapable of giving consent or resisting intercourse because of an intoxicant such as alcohol or a drug4.
  6. And the defendant was reasonably aware, or should have been aware, of the spouse’s unconscious or vulnerable state5.

What Constitues Consent?

Consent means that the spouse agreed to sexual intercourse freely, voluntarily and willingly and was aware of and understood the nature of the sexual act. Being unconscious renders the victim incapable of giving consent or of being aware of the act.

Withdrawing Consent

Consent once given can be withdrawn so long as the victim spouse communicates this clearly to the other spouse and in a manner that any reasonable person would interpret and accept as the withdrawal of consent. If the spouse ignores the communication and continues with the act against the other party’s will, it can be spousal rape.

Threats or Coercion

Further, if the spousal defendant threatens or physically harms or otherwise coerces the other spouse into having intercourse and the victim spouse consents to have intercourse but only if birth control is used, it does not constitute consent.

Incapable Of Providing Consent

If the spouse passes out from alcohol or is so impaired that he/she is incapable of realizing or comprehending that sexual intercourse is occurring, it does not render the act consensual.

Penalty For Spousal Rape – Penal Code 262

The penalties for spousal rape range from probation to state prison time and even a sentence of life imprisonment if you have multiple prior convictions for rape or other criminal sexual conduct6.

The penalties under PC 262 consist of:

  • Formal probation (As of January 1st, 2017 this is no longer available for forcible spousal rape or the rape of an unconscious or heavily intoxicated spouse)).
  • State prison time of 3, 6 or 8 years7
  • Additional state prison time of 3 to 5 years if you inflicted great bodily injury on your spouse8.
  • Fine up to $10,0009
  • Registration as a sex offender for life if the intercourse was accomplished by the use of physical force pursuant to PC 29010

As a sex offender, you will have to have a GPS to monitor your whereabouts and you are prohibited from being within 2000 feet of a school, park or playground.

Legal Defenses

There are a number of defenses to spousal rape:


The most obvious defense is that of consent since the parties were married and consensual intercourse is almost implied because of the close relationship. Many rape cases turn on whether the victim who initially gave consent later withdrew it and if the withdrawal was clearly and unambiguously communicated to the defendant. The communication must have been such that a reasonable person would have understood it as such.

A variation on this is if the defendant had reason to believe the spouse had consented even though no communication either way was given. In this case, there is no violation of PC 262.

False Accusations

It is no secret that many married couples do not like each other but remain married for whatever reason or who may have even started divorce proceedings when the accusation of rape is made. False accusations of rape are not that uncommon and may be based on revenge for infidelity, a desire for custody of the children if separation or divorce proceedings are pending or anger directed towards the other spouse for any other reason.

If little or no evidence exists of physical violence and no other corroborating evidence is present to counter the other spouse’s motivation to accuse the defendant of rape, then a valid defense may be raised.

Lack Of Evidence

A dearth of corroborating evidence coupled with the obvious motivation of the spousal victim to fabricate an allegation of rape may exonerate the defendant spouse. Otherwise, if the charge consists solely of a spouse accusing the other without any other evidence, it should be enough to acquit the defendant if not have charges dismissed.

Related Offenses

Oral Copulation by Force – PC 288a
Oral copulation by force is an additional or companion charge with spousal rape. It is the unconsented contact of the victim’s mouth with a sexual organ or anus by the use of duress, physical force or the threat of imminent bodily harm to that person, or the threat to retaliate against another person if the sexual act is not done.

It is nonconsensual if the victim spouse is unable to communicate consent because of intoxication or drug impairment or is unconscious and unable to comprehend the nature of the act. If the spouse is physically unable to resist, then it becomes nonconsensual and a crime.

The offense is always a felony. You may spend 3, 6 or 8 years in state prison and be required to register as a sex offender on an annual basis, or when you change residences, for life. A fine is up to $10,000.

Sexual Battery–PC 243.4
Sexual battery is a “wobbler” offense and preferred to spousal rape if it can be reduced to a misdemeanor sexual battery.

Sexual battery is the nonconsensual touching of another person’s intimate parts for the purpose of sexual gratification, arousal or abuse. If there is no touching of the skin, it is not a felony.

If convicted of a felony, you face 2, 3 or 4 years, a $10,000 fine and lifetime registration as a sex offender.

Domestic Violence—PC 273.5
There are a number of domestic violence laws that affect spouses since a spouse is an intimate partner under the law. Under PC 273.5, you can be convicted of corporal injury on a spouse if you intentionally or willfully inflict some kind of physical injury that is considered traumatic. This usually refers to a visible injury such as cuts or bruises.

If charged as a misdemeanor, you face up to a year in county jail and a fine to $6000.

A felony conviction carries 2, 3 or 4 years in state prison and a fine up to $6,000. There is the possibility of Felony Probation where you could spend time in county jail or doing community service. In conjunction with this conviction, you could be under a temporary or permanent restraining order prohibiting you from contact with your spouse for up to 10 years in some cases.

Domestic Battery—PC 243(e)(1)
Domestic battery does not require that the victim incur any injury at all so long as the offender used some kind of force or violence on the spousal victim. Merely grabbing your spouse’s shirt and ripping it or pushing your spouse down to the ground is enough to satisfy the elements of this offense. The touching of the other spouse must have been intentional and as well as offensive or harmful.

This is a misdemeanor offense with possible jail time of up to one year and a fine up to $2000.

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

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  1. Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089] []
  2. California Penal Code 262(b) – “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. []
  3. California Penal Code 262(c) – menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another. []
  4. California Penal Code 262(a)(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. []
  5. California Penal Code 262(a)(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 any 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. []
  6. California Penal Code 667.61(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.” []
  7. California Penal Code 264(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. []
  8. California Penal Code 12022.7(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 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 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.”). []
  9. California Penal Code 672 []
  10. 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.”] []

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