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Spousal Rape California Penal Code Section 262

Spousal Rape: California PC 262

According to California Penal Code Section 262 spousal rape is defined as having sexual intercourse with spouse when one of the following situations is true:

  • Intercourse is committed by force, threats or violence.
  • Intercourse is committed when the victim is intoxicated.
  • Intercourse is committed when the victim is unconscious of the nature of the act. At the time of the act the spouse was asleep; was not aware, that the act occurred or was not aware of the essential characteristics of the act due to the perpetrator’s fraud in fact.
  • The perpetrator threatened of future harm against the victim or any other person if the victim did not consent.
  • The victim agreed under the threat of deportation or arrest and reasonably believed that the perpetrator is a public official.

Elements of Spousal Rape Crimes Under California PC 262

Prosecutor must establish the following elements to convict a defendant under California Penal Code Section 262.

  • Defendant engaged in an act of intercourse with a person to whom he was married.
  • Defendant engaged in an act of intercourse without the consent of the spouse.
  • The intercourse was accomplished by one of the above described means.

Legal defenses to California PC Section 262 Charges

  • Consent

One of the most obvious defenses is the consent of the spouse since the parties were married. In case the defendant’s spouse actually gave the consent to the sexual act, then marital rape did not occur. In case the spouse initially gave the consent but then changed her or his or mind the defendant may not be convicted unless the victim clearly communicated that she or he wanted the act to stop.

  • False Accusations

Many married couples don’t like each other but remain married for different reasons or may even have started the divorce process when the false accusation of rape was made. False accusations can be based on a desire for custody of the children, revenge for infidelity, or anger directed towards the spouse for many reasons. This can be a valid defense in case there is no evidence of physical violence and no other corroborating evidence is present to accuse the defendant of spousal rape.

  • Lack of Evidence

It should be enough to acquit the defendant in case the charge consists exclusively of a spouse accusing the other without any additional evidence.

Penalties for Violating California PC Section 262

Under California PC Section 262 crime of spousal rape is a felony, with the following possible penalties:

  • Felony probation. As of January 1, 2017, this is no longer available for the rape of an unconscious or intoxicated spouse or forcible spousal rape.
  • Three, six, or eight years in California State Prison.
  • In case the defendant inflicted a great bodily injury on the spouse he can receive an additional three to five years in California State Prison.
  • A Fine up to $10,000.
  • A lifetime requirement to register as a sex offender in case the intercourse was accomplished by the use of physical force pursuant to California PC Section 290
  • As a sex offender, the defendant will have to have a GPS to monitor his location and he will be prohibited from being within 2000 feet of a playground, school, or park.

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