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What is spousal rape?

If you are a California resident who has been charged with raping your spouse, you should be aware that California takes this crime seriously. As set forth in Section 262 of the California Code, spousal rape is defined as nonconsensual sexual intercourse with your spouse that you accomplished under one or more prohibited circumstances. One such circumstance is that you perpetrated the intercourse through force, duress, violence, menace, or by putting your spouse in fear of immediate and unlawful bodily injury.

Other prohibited circumstances include the following:

  • You prevented your spouse from resisting by means of alcohol or a controlled substance, such as a drug or anesthetic.
  • You had intercourse with your spouse while she or he was unconscious, asleep, or otherwise unaware of what was happening.
  • You threatened to retaliate against your spouse or someone else if she or he did not submit to you.
  • You threatened your spouse with arrest, incarceration or deportation by a public official if she or he did not submit to you.

Definitions

As defined in Section 262, the following words have the following meanings:

  • “Threatening to retaliate” means threatening to kidnap, falsely imprison and/or to inflict extreme pain or cause serious bodily injury or death.
  • “Duress” means threatening force, violence, danger or retribution against your spouse or someone else, which threat is sufficient to coerce your spouse into submitting to you when she or he otherwise would not have done so.
  • “Menace” means any act, declaration or threat showing an intention to inflict injury on someone.

This information is provided for educational purposes. It should not be interpreted as legal advice.

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