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:
Prosecutor must establish the following elements to convict a defendant under California Penal Code Section 262.
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.
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.
It should be enough to acquit the defendant in case the charge consists exclusively of a spouse accusing the other without any additional evidence.
Under California PC Section 262 crime of spousal rape is a felony, with the following possible penalties:
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