Spousal Rape Laws in California - Penal Code 262 PC

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

The spouse that is alleging that they were raped, has to be able to convince the authorities, and ultimately, a jury if it goes that far, that there was not 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?

In order 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 prove some sort of force or some sort of act by the alleged perpetrator against the will of the alleged victim.

The type of activities that would be necessary in order for the prosecutors to prove a spousal rape case relate to some sort of force being used 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 serious crime.

And a lot of times 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 be able 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's jury instructions on these spousal rape cases and all criminal cases that say, basically, 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 sort of 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, is if somebody threatens another person if they do not engage in some sort of sex, then they will get another person physically or they will do something to them physically, or they will report them to the 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, and it will be countered to what the other party is saying.

This leaves the police and prosecutors in a very difficult 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?

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

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

Bruises, cuts and other injuries that are consistent with somebody's whose been raped. What they'll do is they will bring the alleged victim in for a SART examination, which is basically where they're examined by a nurse practitioner or a doctor and they will examine their entire body to see if they can find injuries that are consistent with somebody who's been raped.

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

Other ways that the prosecutors could prove a spousal rape case would be if they had witnesses that could corroborate some of the alleged victim's story.

For example, sometimes people who are sexually assaulted will text their friends, their family and also, 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 just 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 spousal rape.

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

Obviously, it would be their spouse in this case, and had sex with them against their will. Again, the prosecutors need evidence to back this story up or they're not going to file this type of a case.

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

So, as you can see, there's a lot of different elements that go into figuring out whether somebody actually committed this crime, and 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 let them know exactly what happened.

Once I hear what's happened and I get all the information, having done thousands of criminal cases and many of these type of cases, I'm able to give the person an idea of what the prosecutors are going to be thinking, prosecution and punishment wise. I'm also able to give the person an idea of what type of defense we may have in order 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 members of the community sit there, listen to the evidence and make the decision as to whether or not this person is guilty of the crime.

So, it is a good exercise to fast-forward ahead in 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 working together going over everything in an honest manner and 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.