Spousal rape by force or fear of bodily injury
Information on the crime of spousal rape by force or fear is found at California penal code section 262(a)(1).
PC 262(a)(1) Law (Abbr.)
PC 262(a)(1) Spousal rape is the unlawful sexual intercourse of a woman who is the spouse of the defendant and which is accomplished against the woman's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
Sexual intercourse is any penetration, however, slight, of the penis into the vagina. Ejaculation is not required to prove sexual intercourse.
Menace means any threat, declaration, or act that shows an intention to inflict an injury upon another.
Where a woman is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused, the defendant may be charged with spousal rape (PC 262(a)(2)).
PC 262(a)(1) Sentence & Punishment
Probation Sentence: A probation sentence is period of supervision instead of a prison sentence. Probation sentences carry conditions of probation, or terms of probation, that must be followed in order to avoid further punishment, including an actual prison sentence. A probation sentence for PC 262(a)(1) is called felony probation and is supervised and monitored by a felony probation officer. Probation sentences are allowed for PC 262(a)(1) crimes but only in special circumstances. Whether or not a probation sentence is available in any particular PC 262(a)(1) case depends largely on the facts of the case and the defendant's criminal history.
Sex Offender Registration: If found guilty of lewd and lascivious acts on a minor under 14 (PC 288(a)), the defendant will be ordered to register as a sex offender pursuant to PC 290. For more information please see sex offender registration requirements.
Note: PC 262(a)(2), spousal rape of an intoxicated victm, is not a registerable offense.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, “consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
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Intercourse or sodomy of a minor
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