California Penal Code Section 262 (PC 262): Spousal Rape

Definition and Aspects of Spousal Rape:

While most citizens know that rape is against the law, spousal rape is not as commonly discussed. Under California Penal Code 262 (PC 262), it is illegal to sexually assault or force sex on one’s spouse. Marital rape is a felony conviction, and in California, it is punished similarly to any other type of rape.

Marital rape (PC 262) falls under California’s rape laws. However, since it is between two cohabitants, it is also considered a domestic violence offense. Consequently, if the Defendant is convicted, he/she faces the same punishment as for the below two charges: 

1. Rape – California Penal Code 261 (PC 261)
2. Domestic Violence charges

Spousal rape occurs when a husband or wife, without the other’s permission, engages in the act of sexual intercourse. These laws to protect spouses came about in the 1970s and are now in place in all 50 states. In California, spousal rape penalties are almost identical to “ordinary” rape (PC 261).

Marital or spousal rape (PC 262) often carries one or more of the below characteristics: 

1. The Defendant engaged in sexual intercourse against his/her spouse’s consent using:
   • Violence
   • Force
   • Duress
   • Threats
   • Fear of bodily harm
2. The Defendant’s spouse was unable to resist due to being under the influence of an intoxicating substance, such as:
   • Alcohol
   • Drugs
   • Medication
3. The Defendant’s spouse was unconscious or asleep at the time of the act
4. The Defendant coerces the intercourse by threatening to retaliate against his/her spouse
5. The Defendant bullies spouse to have intercourse by asserting authority and threatening to arrest, incarcerate, or deport spouse

 To be convicted of California Penal Code 262 (PC 262), the Prosecution must prove the following: 

1. The Defendant engaged in sexual intercourse
2. The Defendant and the Victim were married to each other at the time of the incident
3. The Victim did not consent to the act
4. The act was coerced using one or more of the characteristics listed above

Under the definition of the law, sexual intercourse is an act that involves penetration. Ejaculation does not necessarily have to occur, and the length of the intercourse is inconsequential. 

Consent is defined as a willful, voluntary act. If the spouse is under the influence or asleep, he/she cannot fully consent or understand the Defendant’s actions; therefore, he/she is not a willing participant. 

A spousal rape can also occur even if the spouse was a willing participant at first but changed their mind. An example of this situation can unfold as: 

1. The spouse attempts to stop the intercourse, communicating that they are no longer consenting
2. A reasonable person would understand the spouse is objecting to the intercourse
3. The Defendant continues with the action, despite the objection of the spouse 

Criminal Offenses Related to Spousal Rape:

Similar or related offenses to California Penal Code 262 (PC 262), spousal rape: 

1. Sexual Battery – California Penal Code 243.4 (PC 243.4)
2. Rape – California Penal Code 261 (PC 261)
3. Corporal Injury on a Spouse – California Penal Code 273.5 (PC 273.5)
4. Oral Copulation by Force – California Penal Code 287 (PC 287) 

Examples of Spousal Rape:

A woman slips a pill in her husband’s drink that she knows would make him sleep through the night. While he’s asleep, she has intercourse with him. Under California Penal Code 262 (PC 262), she could be charged with spousal rape as her husband was unable to give consent, and she was aware of his incoherence. 

A man tells his wife, who is a green card holder that he will have her deported if she does not have intercourse with him. Because he coerces her into the sexual act by threatening her immigration status, he could be charged with marital rape (PC 262). 

A woman is having consensual intercourse with her husband, during which she changes her mind. She asks him to stop, repeatedly expressing her wish to end the act. Her husband, while aware of the wife’s wishes, continues. Under California Penal Code 262 (PC 262), he could be charged with marital rape, as the act became nonconsensual. 

Defenses to Spousal Rape:

Relationships go through difficult times and often result in fights. One of the most common defenses to California Penal Code 262 (PC 262) is a false accusation. If the spouses got into a heated argument and one of them accused the other of rape out of anger, revenge, jealousy, or financial gain, it counts as a false accusation, and the case should be dismissed. 

Another defense questions if the act was consensual. If the alleged Victim agreed to the sexual intercourse but later changed his/her mind and failed to communicate that, it would not count as spousal rape. Additionally, if the alleged Victim gave full consent to the occurrence, it does not count as rape, and the case should be thrown out. 

Lastly, if there is not enough evidence to convict the Defendant beyond a reasonable doubt, the case could be dismissed. Most often, these instances occur in the privacy of the couples’ home, and there are no witnesses who overheard or can attest to the accusations. If there was no medical attention sought after the incident, it becomes a ‘he said-she said’ case. With insufficient evidence, an experienced defense attorney should be able to get the Defendant off. 

Consequences and Penalty for Spousal Rape:

Spousal rape or California Penal Code 262 (PC 262) is a felony-level crime. If convicted, the Defendant can face formal probation time, 3-8 years in a California state prison, and up to $10,000 in fines. If the Defendant inflicted bodily injury on his/her spouse, the penalty could increase with an additional 3-5 years in prison. 

If the Defendant has a record of previous sex crimes and this is his/her third strike, he/she could face a maximum life prison sentence. This is usually the case if great bodily injury was involved, and/or the Defendant threatened great bodily harm. 

Additionally, if the spousal rape included the use of force or violence, the Defendant would have to register as a sex offender according to California Penal Code 290 (PC 290). This registration is life-long, and failure to comply results in another felony conviction. 

Spousal rape (PC 262), under California Penal Code 262, is a serious felony offense that can result in jail time, severe fines, and lifelong consequences. It is imperative that if you are charged with Spousal Rape, you contact an experienced attorney as soon as possible. 

For an experienced attorney in your corner, Action Lavitch from Action Defense Lawyers is available 24/7 at (747) DEFEND U or (747) 333-3638. With a proven track record and speaking both English and Spanish, Action Lavitch and the team from Action Defense Lawyers provide skilled legal representation and professional advice. Having an above 90% success rate for clients, Action Defense Lawyers is the go-to for those charged with California Penal Code Section 262 (PC 262), Spousal Rape. Book a free consultation today.