In October of 2021, California's state legislature officially enacted Assembly Bill 1171, which, among other things, repealed the state's “spousal rape” law, formerly California Penal Code 262 PC. This act makes spousal rape subject to the same penalties as non-spousal rape defined under California Penal Code 261 PC.

Advocates of the repeal hailed it as long-overdue progress toward changing antiquated laws to match modern belief systems about marriage and sexual consent. Many argued that a marriage license is not an excuse for committing rape.

California Assembly Bill 1171 repealed PC 262 spousal rape law and now penalized the same as rape.

California Governor Gavin Newsom (D) signed the bill that mostly eliminates a distinction in California law between “spousal rape” and “rape,” which resulted in lesser legal penalties for perpetrators who rape their spouses.

Assembly Bill 1171 eliminates California Penal Code 262 PC spousal rape to ensure perpetrators convicted of raping their spouse will be subjected to the same mandatory prison sentence and sex offender registry requirements as anyone convicted of raping someone who is not their spouse.

Under the now prior law, anyone accused of raping their spouse was allowed to negotiate a favorable plea bargain with the prosecutor. This included imposing a probation-only sentence that allows a judge to decide whether to order them to register as a sex offender.

Also, the prior law didn't allow prosecution for rape when a spouse could not give sexual consent due to being under the influence, unconscious, threatened with retaliation, or the perpetrator fraudulently represented the situation. Under AB 1171, these exceptions have been eliminated. In this article by our Los Angeles criminal defense lawyers, we will examine this subject in greater detail below.

A Brief History of Spousal Rape Laws

To understand the ramifications of this repeal, let's review why spousal rape was initially considered a separate crime from non-spousal rape. As recently as the early 20th Century, married women in American culture were considered the property of their husbands, including sexual property, meaning their irrevocable consent was understood by the act of marriage.

This essentially allowed husbands to force sex upon their wives with impunity, and if they were accused of raping their wives, every state provided a “spousal rape exemption” to the husbands.

It wasn't until 1976 that states began repealing these exemptions, and it wasn't until 1993 that all 50 states repealed them. However, many states, including California, still treated spousal rape as a different, and lesser, crime than non-spousal rape.

Why Was California Penal Code 262 PC Repealed?

For many years, feminists and feminist advocates have decried spousal rape laws because they treated spousal rape as less serious than the general crime of rape. In California, the penalties for spousal rape under PC 262 were similar to those under PC 261, with two glaring exceptions:

• The spousal rape defendant could “plea bargain” a prison sentence down to probation versus the mandatory minimum prison sentences now required for general rape under California law.
• The judge had the option of allowing a married rape defendant not to register as a sex offender, while registration is mandatory under Penal Code 261 PC rape.

These two exceptions were incredibly offensive to feminists and victims of marital rape because they were effectively a throwback to antiquated mindsets that raping one's spouse was either not wrong or “not as bad” as raping a stranger, for example. 

How is Spousal Rape Treated After the Repeal?

With the repeal of PC 262, spousal rape will now be prosecuted simply as rape under PC 261 and will be treated with the same severity as any other act of rape. California Penal Code 261 PC defines the crime of rape as using force, threats, or fraud to have non-consensual sexual intercourse with another person.  

PC 261 lists several scenarios that constitute rape, which is non-consensual sex with another person when:

• the victim is incapable of giving consent due to a mental disorder,
• the victim can't consent because of intoxication, and
• the victim was unconscious at the time of the sexual act,
• the act of intercourse was accomplished by force, violence, or duress.

If you are convicted of raping your spouse in California, here's what you can expect as defined under Penal Code 264 PC:

• A mandatory sentence of 3, 6, or 8 years in state prison,
• Fines up to $10,000,
• One “strike” on your criminal record under California's Three Strikes Law, three qualifying felony convictions mean 25 years to life imprisonment,
• Lifetime registration as a sex offender

What Are the Related Sex Crimes?

Several statutes are related to Penal Code 261 PC rape discussed below.

Statutory rape – Penal Code 261.5 PC: this is an act of sexual intercourse, even consensual, with anyone under 18.

A Penal Code 261 PC rape conviction will carry up to 8 years in prison and lifetime sex offender registry.

Sexual battery – Penal Code 243.4 PC: this is touching someone's private parts without their consent for the purposes of sexual gratification.

Oral copulation by force or fear – Penal Code 287 PC: this is an act of nonconsensual contact between one person's mouth and the genitals or anus of another.

Forcible penetration with a foreign object – Penal Code 289 PC:  this is the nonconsensual penetration of a vagina or anus with something other than genitalia.

Failure to register as a sex offender - Penal Code 290 PC: this occurs when a convicted defendant fails to register with law enforcement as ordered by the court.

Habitual sex offender - Penal Code 667.71: this law imposes a state prison sentence of 25-years-to-life for defendants convicted of multiple sexual-related crimes.

What Are the Best Defenses for Rape Charges?

Owing to the repeal of PC 261, those accused of raping a spouse can no longer use the marital relationship as a bargaining chip to reduce their sentence or claim their innocence. Instead, the only defenses available are those typically claimed by other defendants against charges of rape. These include, but are not limited to:

• Consent. The other party consented to the sexual act, or you had sufficient reason to believe they consented to it;
• No intercourse. Other sexual acts such as oral copulation may have occurred, but there was no genital penetration. This defense may sometimes be used to reduce the charges to a lesser sex offense.
• False accusation. Your spouse falsely accused you of rape, perhaps for jealousy or anger.

The most critical issue in a rape prosecution is related to the issue of consent, or the lack thereof.  Perhaps we can argue that sexual intercourse with the alleged victim was consensual, which is a complete defense to rape charges.

There are several legal defenses for PC 261 rape charges, such as arguments over issues of consent.

This defense could be established through cross-examination of the complaining witness. Perhaps we can create reasonable doubt that the defendant committed any form of rape.

Perhaps we could show or create doubt that there was no sexual intercourse or insufficient evidence to prove it beyond a reasonable doubt. Another defense in rape cases is arguing the alleged victim made false allegations against a defendant because of jealousy, revenge, or anger.

Further, we might be able to negotiate with law enforcement and the District Attorney to persuade them not to file formal criminal charges in the first place, which is called a “DA reject.”

Eisner Gorin LLP is based in Los Angeles County and serves people across the state of California. You can contact us for an initial case review by calling (310) 328-3776 or filling out the contact form.