Spousal Rape (Penal Code §262)

Spousal Rape (Penal Code Section 262)

In California, it is just as unlawful to force sexual intercourse on a spouse as it is to do so on a stranger. The law specifically makes it unlawful to rape a spouse because not that many years ago, spouses were exempted as victims under the rape laws. Under Penal Code section 262, which specifically addresses spousal rape, it is a crime to have sexual intercourse with your spouse without your spouse’s consent. This includes engaging in sexual intercourse with a spouse who cannot resist due to intoxication or because he or she was asleep. Of course, forcing sexual intercourse on a spouse through violence, threats, or intimidation is also unlawful under this statute. Spousal rape may also be charged in conjunction with domestic battery or bodily injury on a spouse.

Here’s an example of a possible act of spousal rape under this statute: Ron and Judy’s marriage is on the rocks. Over a few glasses of wine they try to sort it out but it devolves into an argument. Judy is inebriated; she is slurring her words and stumbles when she gets up to pour another glass of wine. Judy places a slobbery kiss on Ron’s lips and tells him she hopes they can work it out, then she heads for bed. Ron, who is also drunk, stumbles into the bedroom even though they have been sleeping in separate rooms for the past month. He climbs into the bed and starts making the moves. Judy, already falling asleep, groans and mumbles, “stop it honey; not tonight.” He persists. She mumbles a few more times, “not tonight.” Ron has sexual intercourse with his wife even though she basically sleeps through it with a few mumbles here and there. Under Penal Code section 262, Ron has raped his wife.

As with the other domestic violence crimes, allegations of spousal rape can be used as a retaliation tool or as way to gain an advantage during divorce proceedings. Indeed, Penal Code section 262 forbids the use of community property funds in payment of any restitution to the victim or for court ordered payment by the defendant for counseling or other services to the victim. It is not hard to see how this law can be exploited, especially considering that the evidence is often just the allegation alone.


The fact that there may be no actual evidence other than the spouse’s allegations often provides the best defense. If there are no injuries to the spouse or no witnesses, a skilled defense attorney can usually succeed in getting the charges dismissed. Another possible defense is that the spouse consented to the act. As you might imagine, this charge may be difficult to prosecute, especially if the spouse making the allegations sustained no injuries.


A charge of spousal rape, even if difficult to prosecute, demands serious attention. The penalties for spousal rape are no different that the penalties for rape of someone other than a spouse. If convicted, the penalties are imprisonment in state prison for three, six, or eight years and a requirement to register as a sex offender.

Orange County spousal rape defense attorney, William Weinberg, has been defending those charged with rape, including spousal rape, for 30 years. His expertise and commitment to the defense of every person he represents ensures that each of his clients sees the best possible outcome on their case. Mr. Weinberg welcomes your questions. You can contact him for a complimentary consultation at his Irvine office by calling (949) 474-8008 or by emailing him at bill@williamweinberg.com.

Client Reviews
He was open, honest and compassionate (qualities you don't always find in an attorney) and his credentials proved that he is more than qualified to handle this complicated case. JoAnn H.
Not only did [my case] get resolved with great efficiency, [Mr. Weinberg and his team] were very open with me and kept the lines of communication flowing which I appreciated greatly. Ryan T.
There are many things about our conversations that told me that bill was an honest guy and knew what he was talking about. Amy C.