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#406 Spousal rape

mp3 #406 Rape of a Spouse (mp3 file)


Law enforcement officers investigating a crime may ask you questions without arresting you. Volunteering information can lead to your arrest. If you suspect you may be the subject of an investigation, you should IMMEDIATELY consult with a criminal attorney to avoid incriminating yourself. Continue here to be referred to an experienced and insured criminal defense attorney:


California Penal Code Section 262 makes it a crime for a husband or a wife to rape his or her spouse.

The crime is defined as follows:

Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:

(1) Where it is accomplished against ...• a person's will…by means of force, violence, duress, or menace, or fear of immediate and unlawful bodily injury on the person or another, or

(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, administered by or with the knowledge of the accused, or

(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. "Unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:

(A) Was unconscious or asleep, or

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred, or

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.

It is also rape of a spouse where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. "Threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

It is also rape of a spouse 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.

"Duress" means a direct or implied threat of force; violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship-to the defendant, are factors to consider in apprising the existence of duress.

"Menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another.

The victim must report the rape within one year after the violation, and the report must be made to medical personnel, a member of the clergy, an attorney, a shelter representative, a counselor, a judicial officer, a rape crisis agency, a prosecuting agency, a law enforcement officer, or a firefighter. This one-year reporting requirement does not apply, however, if the rape is corroborated by independent evidence that would be admissible at a trial.

Spousal rape in California is a felony punishable by imprisonment in the state prison for three, six, or eight years.

If the rapist is given probation instead of state prison, the court may order the rapist, instead of a fine, to reimburse the victim for reasonable costs of counseling, and other expenses that are the direct result of the rapist's offense. The court may also require the rapist to make payments to a battered women's shelter, up to $1,000.

Forcible anal sex, forcible oral sex, and forcible sex with a foreign object against a spouse, are not prohibited by the spousal rape law, but those acts against the spouse are unlawful under other criminal laws.

If you have been the victim of a spousal rape, or other unlawful sex acts by your spouse, you may find it helpful to talk to a rape crisis counselor if this service is available in your community, or to a victim assistance counselor at your local district attorney's office.

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