September 23, 2014 By Stephen Klarich

In the past, sex crime laws did not apply to the acts of spouses toward each another. It was therefore impossible to be prosecuted for raping one’s spouse. The modern trend has been to do away with that historic exception. Since 1993, all 50 states have made spousal rape (also known as marital rape) a crime. In California, prosecution for spousal rape occurs under Penal Code section 262.

How Does Penal Code Section 262 Define Spousal Rape?

Spousal rape is defined as having sexual intercourse with one’s spouse where the intercourse happens in one of the following situations:

  • Committed by force or fear.
  • Committed when your spouse is intoxicated.
  • Committed when your spouse is unconscious of the nature of the act. This means that, at the time of the act, your spouse: Spousal rape is a serious crime in the state of California.
    • Was unconscious or asleep; or
    • Was not aware, knowing, perceiving or cognizant that the act occurred; or
    • Was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
  • Where the act is accomplished by making threats of future harm against the victim or any other person, such as threats to kidnap, to inflict extreme pain, or to cause serious bodily injury or death.
  • “Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official…‘Public official’ means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.” 1

What Are the Possible Punishments for Spousal Rape? (California Penal Code Section 264)

When punishing the crime of spousal rape, the law views this type of rape no differently than it does the rape of a non-spouse. Penal Code section 264 provides that rape is punishable by imprisonment in California state prison for a term of three, six or eight years. In some cases, the court will grant probation on the condition that the person convicted of spousal rape serve up to one year in county jail.

The law also provides that you can be fined up to $10,000, or, if you’re granted probation, be required to donate up to $1,000 to a domestic violence shelter and pay for reasonable counseling expenses for the victim of the offense.

Spousal Rape and the Sex Offender Registry

If you are convicted of spousal rape, you will not be required to register as a sex offender pursuant to Penal Code section 290 unless the conviction is for spousal rape by force or fear under Penal Code section 262(a)(1), and you were sentenced to state prison. However, the sentencing court always has the discretion to order you to register under Penal Code 290.006, provided that the court finds the crime was a result of sexual compulsion or for sexual gratification.

How Spousal Rape Affects Divorce and Child Custody

Child custody becomes difficult after a spousal rape conviction
If you are convicted of spousal rape, winning custody of your children will become more difficult.

A conviction for spousal rape has a dramatic impact on the awarding of spousal support and child custody. Beginning in 2013, California Family Code section 4324.5 prohibits the awarding of spousal support payments to a person convicted of committing a violent sexual felony against his or her spouse. 2

In addition, the court cannot require the injured spouse to “pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.” 3

A spousal rape conviction also makes winning a custody fight more difficult. California Family code section 3044 creates a presumption against awarding sole or joint physical or legal custody to a parent who has committed an act of domestic violence against the other parent, the child, or the child’s siblings. 4
The presumption can be overcome, and custody can still be awarded, but it is difficult.

Contact the Attorneys at Wallin & Klarich to Learn More

If you are charged with a sex crime such as spousal rape, your freedom depends upon choosing an experienced and aggressive attorney. Wallin & Klarich has been successfully defending people accused of such crimes for over 30 years. Contact us today for a free, no obligation consultation and let us help you too.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in sex crime laws near you, no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

1. [Cal. Penal Code § 262 (West).]

2. [Cal. Fam. Code § 4324.5 (West).]

3. [Id.]

4. [Cal. Fam. Code § 3044 (West)]

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