April 5, 2023 By Stephen Klarich

California’s Spousal Rape Laws and Penalties

Until October 2021, spousal rape was a criminal offense under California Penal Code Section 262. After the passing of Assembly Bill 1171, however, the law was repealed, and spousal rape came to be prosecuted largely the same as non-spousal rape under PC Section 261. Below, our attorneys discuss the penalties and defenses for spousal rape today. 

What Is Spousal Rape? 

Spousal rape, also referred to as marital rape, is sexual intercourse that takes place without a spouse’s consent. This includes intercourse achieved through physical force or violence, as well as intercourse occurring while one spouse is intoxicated or unconscious. Specifically, PC Section 261 provides that rape has occurred if: 

  • Sexual intercourse is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another 
  • A person is prevented from resisting by an intoxicating, anesthetic, or controlled substance 
  • A person is unconscious, asleep, or unaware of the nature of the act 
  • A person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice with intent to induce the belief 
  • Sexual intercourse is accomplished against a person’s will by threatening to retaliate in the future against the person or another 

Penalties for Spousal Rape 

Before AB 1171 was passed, the penalties for spousal rape were more lenient than those for non-spousal rape. For example, in California, it was possible for spousal rape defendants to use a plea bargain to reduce their sentence from prison time to probation. Additionally, judges had discretion to keep spousal rape defendants off the sex offender registry, which was not an option available to normal rape defendants. 

However, after the passing of AB 1171 which repealed PC Section 261, spousal rape nowadays is largely prosecuted the same as non-spousal rape, with the same penalties. If you are convicted of rape, you may face: 

  • Up to 8 years in state prison 
  • Up to $10,000 in fines 
  • A strike under California’s Three Strikes Law 
  • Sex offender registration 

Defenses to Spousal Rape 

If you have been accused of spousal rape, you need an experienced sex crimes attorney to defend you at trial. Our attorneys have noted a number of successful defenses in rape cases, including the following: 


In order to convict you of any kind of rape, the prosecution must prove that you engaged in sexual intercourse without the consent of another. If the other party consented to the sexual act, or if you had sufficient reason to believe they consented, you may not be found guilty of spousal rape. 

No Sexual Intercourse 

If you engaged in sexual acts such as oral copulation, but there was no penetration involved, you may not be convicted of rape. Your attorney may be able to use this defense in order to reduce your charges to a lesser offense. 

False Allegations 

Spouses can make false allegations for a number of reasons, such as out of anger or jealousy. If the allegations against you are untrue, our attorneys will do everything in our power to uncover the truth by examining evidence and speaking to potential witnesses. 

Contact Wallin & Klarich Today 

If you have been accused of spousal rape in California, contact Wallin & Klarich as soon as possible to see how we can help. We understand how tough sex crime cases can be, but we seek to create a comfortable, judgment-free zone for you to tell your side of the story. With 40+ years of experience, our attorneys at Wallin & Klarich have helped thousands of clients clear their names and restore their reputations, and we have the skills and resources to help you as well. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego, you are sure to find an available and convenient attorney near you. 

Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

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