Spousal Rape – Can You Be Charged?

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Overview of Penal Code 262

Spousal rape may seem surreal to some people but California law treats rape of a spouse no differently and just as harshly as the rape of anyone else. 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 force, violence, duress, 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 drug
  6. And the defendant was reasonably aware, or should have been aware, of the spouse’s unconscious or vulnerable state

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.

Consent once given can be withdrawn so long as the victim spouse communicates this clearly to the other spouse and in a manner that any reasonable person would interpret and accept as the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.

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.

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.

How Does The Prosecutor Prove The Crime

Insurance Code 1871.4 is the primary code section pertaining to this type of fraud. Under this code section, workers’ compensation fraud consists of the following elements or acts:

  1. Knowingly making or causing to be made a false or fraudulent material statement or representation for the benefit of obtaining workers’ compensation benefits
  2. Knowingly presenting or causing to be presented a false or fraudulent oral or written material statement in support of, or in opposition to, a claim for workers’ compensation benefits
  3. Knowingly aiding and abetting or conspiring with another person to commit an act of workers’ compensation fraud
  4. Knowingly making or causing to be made a false or fraudulent statement in regard to an entitlement to benefits with the intent to discourage an injured worker from claiming benefits or pursuing a claim

Element of Making a Representation or Statement

For purposes of this code section, “making a representation or statement” encompasses a wide array of conduct and activities including:

  • Billing for services
  • Payment for services
  • Drafting medical records
  • Oral statements
  • Written statements
  • Diagnostic tests
  • Evidence of injury or loss

An example where both a healthcare provider and a worker are criminally liable is where a health care provider submits bills to the workers’ compensation insurer for services not rendered and the injured worker who is being treated aids and abets the fraud by agreeing to go along and not informing the insurance company.

Element of Knowingly Making a Material Statement or Representation

A “material” statement or representation refers to any fact or information that is reasonably relevant and directly significant to any investigation or evaluation of the claim. An example is an injured worker who deliberately fails to mention that his work injury was an aggravation of a pre-existing injury received outside of work.

Element of Knowingly Making a False or Fraudulent Statement

Any oral or written statement you make to an insurer that you know is false and intended to either obtain benefits for yourself or, if you are an employer, designed to deny a worker certain benefits to which he or she would be entitled to is fraud. But there are other acts that constitute “false or fraudulent statements:”

  • Not disclosing a pre-existing injury
  • Exaggerating or fabricating the extent of an injury
  • Claiming that an injury at home occurred at work
  • Lying for the benefit of a co-worker
  • Secretly working at another job while receiving worker’s comp benefits
  • Staging an accident or faking an injury
  • Misrepresenting to an insurer about the worker’s job duties
  • Misrepresenting to an insurer about the number of employees you have
  • Lying or misrepresenting facts to a worker to prevent or discourage a worker from filing a claim

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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 conduct. The penalties under PC 262 consist of:

  • Formal probation
  • State prison time of 3, 6 or 8 years
  • Additional state prison time of 3 to 5 years if you inflicted great bodily injury on your spouse
  • Fine up to $10,000
  • Registration as a sex offender for life if the intercourse was accomplished by the use of physical force pursuant to PC 290

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.

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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.

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