As you might guess, the crime of marital rape is grave, and the police, prosecutors, and judges take this type of offense seriously. Over the last 25 years of practicing criminal defense, I don't see a lot of spousal rape cases. One of the significant issues surrounding these types of cases relates to consent.

The spouse alleges that they were raped to convince the authorities, and ultimately, a jury, if it goes that far, that there was no consent related to what happened.

When people are married, it is assumed by most reasonable people that they will engage in normal sexual relations.

So, in a way, there's a bit of presumption there that it is impossible to rape your spouse. However, this is not accurate, and there are spousal rape cases that are filed every day; it just depends on the circumstances of the case.

What Must the Prosecutor Prove?

To prove a spousal rape case in Los Angeles County, the prosecutors and police know that they're going to have to be able to establish some sort of force or some act by the alleged perpetrator against the will of the alleged victim.

The type of activities necessary for the prosecutors to prove a spousal rape case relate to using force against the victim. The question becomes, how do they prove that force was used if they don't have any witnesses that can corroborate the alleged victim's story.

The issue becomes if it's a one-on-one situation, how do the prosecutors show that the alleged victim is telling the truth versus the other spouse who is being accused of such a severe crime.

And often, when it's one person's word against another person's word, the problem becomes that the prosecutors have to get over a pretty high standard in a criminal case, which is to prove their case beyond a reasonable doubt.

And when one party is saying one thing, and the other party's saying something else, this pretty much adds up to a 50/50 tie, and there are jury instructions on these spousal rape cases and all criminal cases that say tie goes to the defendant.

In other words, if there's evidence on one side that shows that there's spousal rape, and there's evidence on the other side that show's that there's not and there's some reason the person might have made this up, then the jury is to find the defendant not guilty.

Other areas that I see these types of cases filed in are if somebody threatens another person if they do not engage in some sex, they will get another person physically, do something to them physically, or report them to authorities for some reason.

Under these circumstances, this can also be filed as a spousal rape case and be prosecuted. But again, you still have the same issue if you're the police and prosecutors as to how do you prove that someone who's just saying something is telling the truth, versus the person who's being accused will, of course, have a version as well. It will be countered to what the other party is saying.

This leaves the police and prosecutors in a challenging position. This is probably why you don't see a lot of spousal rape cases being filed in LA County.

What it Will Take to Prosecute a Spousal Rape Case?

For the prosecutors to feel comfortable that they have sufficient evidence to go after somebody for spousal rape, they're going to need to have facts and circumstances surrounding whatever event is claimed to have taken place, supporting the victim's version of the event.

For example, if there are injuries on the victim consistent with their story and consistent with being raped, that would be evidence they could use to attempt to prosecute somebody for this crime.

Bruises, cuts, and other injuries are consistent with somebody who has been raped. What they'll do is they will bring the alleged victim in for a SART examination, which is basically where a nurse practitioner or a doctor examines them. They will look at their entire body to see if they can find injuries consistent with somebody who's been raped.

Without this corroboration, it is tough for the prosecutors to prove the case. The defense is also entitled to have their expert look at the results of the SART examination and give an opinion on whether they think the alleged victim was raped.

The prosecutors could prove a spousal rape case if witnesses could corroborate some of the alleged victim's stories.

For example, sometimes, people who are sexually assaulted will text their friends, their family, and their friends and family will see evidence that the person is being intimidated, threatened, or even force is being used against them.

Witnesses are another way to corroborate an alleged victim's story, and prosecutors use them all the time, so they don't have the victim alone. They have other people that can say yes, I saw this; I saw that, and then they put that together with the alleged victim's story, and they're able to make a case for spousal rape.

Defenses to Spousal Rape Cases

One of the most commonly used defenses in a spousal rape case is consent. Meaning, if the other party consented to the sexual activity, then it is not appropriate for someone to be convicted of marital rape.

There are circumstances where somebody is intoxicated to a high level and claims that another party forced them to have sex, or there are circumstances where the person is unconscious. They claim that somebody took advantage of them.

In this case, it would be their spouse and who had sex with them against their will. Again, the prosecutors need evidence to back this story up or not file this type of case.

Because every time that I see spousal rape cases being filed, there's always some contention by the other party that their significant other consented to the sex.

So, as you can see, many different elements go into figuring out whether somebody committed this crime. The best way to assess this is to sit down with your criminal defense attorney, go over everything step-by-step, be honest with them, and tell them precisely what happened.

Once I hear what's happened and get all the information, having done thousands of criminal cases. In many of these types of cases, I can give the person an idea of what the prosecutors will be thinking, prosecution and punishment-wise. I'm also able to give the person an idea of what type of defense we may have to refute these charges.

And, of course, if the prosecutors have the evidence that they need to prove the case, then I'm able to sit down, go over everything with the person that's charged, figure out what we can do mitigation wise so that I can then approach the prosecutor and judge and see what I can do to resolve the matter.

Can The Prosecutor Prove Their Case to a Jury?

What these cases of spousal rape boil down to is whether or not the prosecutors can prove their case to a jury.

Because in the end, any time a criminal case is filed, the person is entitled to have a jury trial. That means twelve community members sit there, listen to the evidence, and decide whether or not this person is guilty of the crime.

So, it is an excellent exercise to fast-forward ahead at the beginning of the case to say, okay, what do they have, what do they have, and can they make their case to a jury?

If the answer is yes, based on the physical evidence, the circumstances, the statements, then obviously we're going to want to set about designing a plan to get this thing mitigated and see what we can do to preserve your rights, your reputation, and your freedom.

That takes you, and I am working together, going over everything honestly, then making the right decisions at the right time, and executing the plan that will get you out of the criminal justice system as fast as possible.

This is where I come in, and this is why I'm retained to handle these cases because I know what it's going to take to get you the result you must have, and I've been down this path before and had success.