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In the past, the state of California made a distinction in regard to rape within marriage and outside of marriage, with the terms “marital rape” or “spousal rape” applied in situations where a person was raped by their spouse. Marital rape statistics suggest that this occurs in 10-14% of marriages in the US, with 1/3 of women stating that they have felt pressured or coerced into forced sexual intercourse with their partners.

However, the situation regarding marital rape in California has since changed. In 2021, the state’s legislature enacted a new bill, known as Assembly Bill 1171, which repealed the spousal rape law in California. This means that, since the law was repealed, rape in marriage is subject to the same penalties as rape outside of marriage.

What Is Marital Rape or Spousal Rape?

Prior to the repealing of California’s spousal rape law, the definition of spousal or marital rape referred to any situation in which sexual intercourse or activity takes place without a spouse’s consent. The former statute, Penal Code 262, or PC 262, solidified this definition as part of California’s marital rape laws.

Specifically, PC 262 listed various examples in which the term marital rape could apply. For example, a situation in which a spouse has sex with their partner when the partner is sleeping or unconscious after drinking heavily, or if a spouse uses threats of domestic violence or harm to force their partner into sexual activities.

spousal rape

A Brief History of Spousal Rape Laws

In order to better understand why PC 262 was repealed, it’s important to understand the history of marital rape laws, both in California and elsewhere. For many years, up to the 20th century, it was generally believed that wives were regarded as the “property” of their husbands. This effectively created a culture in which husbands could do as they wished with their wives.

This extended to sexual acts, as well. It was generally understood that upon marriage, a wife forgave her right to consent or refuse sexual intercourse, and was expected to comply with her husband’s sexual demands. Because of this, husbands were granted “spousal rape exemptions” by every state, effectively protecting them against accusations of rape by their wives.

However, as times went by and attitudes evolved, the general consensus began to shift. In the latter stages of the 20th century, specifically in the 1970s, states started to repeal these exemptions. By 1993, all 50 states repealed the exemptions, but several states still treated marital rape as a different kind of crime to rape outside of marriage.

Why Was California Penal Code 262 PC Repealed?

Penal Code 262 was in place for a long time, but the law came under pressure in recent years as feminists and advocates for equal rights argued that spousal rape should not be considered any less serious than other forms of rape. They demanded that the marital rape laws be changed in order to reflect that viewpoint.

In California, for example, according to PC 261, it was possible for spousal rape defendants to use a plea bargain to reduce their sentence to probation, rather than time in prison. Judges in these cases were also able to keep defendants off the sex offender register, which is not the case for regular rape defendants.

Many people took offense at these exceptions and disliked the way that spousal rape was seemingly treated as a lesser crime. They argued that rape in all of its forms is a highly serious offense, and wife or husband rape should not be seen as any less grave than stranger rape. Many rape survivors and victims of sexual abuse also supported this argument.

Most Common Type of Marital Rape

There are various types of rape in marriage. Examples include force-only rape, in which one spouse uses power and control to force the victim into sexual intercourse, but does not proceed to make use of stronger levels of physical violence.

Battering rape is another variety, in which actual physical violence and sexual violence are used. This may involve a wife being beaten by her husband either prior to or during a rape, and this kind of rape is categorized by a spouse using a significant level of force to overpower and harm their victim. It is a severe form of sexual assault.

Finally, there is also obsessive or sadistic rape, which involves a spouse torturing their partner and committing repeated acts of sexual perversion, typically connected to their own sexual obsessions or perversions. This may involve painful sexual acts that the spouse is forced to commit. Marital rape statistics show that the most common variety reported to law enforcement is battering rape.

How Do Prosecutors Prove Marital Rape?

Prosecuting a marital rape case can be difficult. Often, spousal rape victims may suffer high levels of trauma associated with their situation of intimate partner violence, and they may feel under pressure about whether or not to testify due to things like children, other family members, and their relationship with their spouse.

Juries sometimes also have doubts about whether or not a case of rape actually occurred, but prosecutors can use various tools to help in their cases. They may try to find other witnesses to provide testimony aside from the victim, as well as build evidence to show domestic violence and unbalanced power dynamics in a relationship.

Marital Rape Statute of Limitations in California

The spousal rape statute of limitations in California is now the same as the statute of limitations for regular rape: indefinite. In other words, there is no spousal rape statute of limitations, and victims can take action against their abusers even several years after a rape has occurred. This is true for all crimes committed after Jan 1 of 2017. Rape statutes in other states can vary.

marital rape laws

What Are the Penalties for Marital Rape?

Rape is charged as a felony in the state of California, rather than a misdemeanor or infraction. A convicted rapist can be sentenced to a prison term of up to eight years. Convicted rapists can also be registered as sex offenders for the rest of their lives.

What To Do if You Are Charged with Marital Rape

If you have been charged with marital rape, the best course of action is to get a lawyer as soon as possible. A legal professional will be able to argue your side of the story and potentially build up evidence to help you defend against a false accusation or reduce the possible sentence that you may receive.

What Are the Best Defenses For Rape Charges?

A criminal defense attorney can help those who have been accused of marital rape, and they may make use of various common defenses, including:

  • Consent – A defendant may try to show that their spouse consented to any sexual act or that they believed consent had been given.
  • False Claim – The defendant may also argue that the claim is entirely false and that no rape occurred.
  • Partially False – The defendant’s lawyer may also argue that the claim is not as severe as it seems and that other sexual acts took place, but not actual intercourse.

Contact a Marital Rape Lawyer Today

If you’re involved in a marital rape or non-marital rape case, it’s important to have proper legal representation and counsel to help you get the best possible result. A Los Angeles rape defense lawyer can help. Contact us today to discuss the details of your case and find out how we can help.

Shaheen Manshoory