Penal Code 262 – Spousal Rape

Spousal Rape – Penal Code 262

One may think that spousal rape is not common.   On the contrary, an allegation of rape made by one spouse against the other, usually occurs where there is a pending separation, child custody battle, restraining order, or immigration consequences.  Under California Penal Code 262, sexual intercourse with your spouse is considered rape where under the circumstances the act was accomplished against a person’s will by force, violence, duress, menace or fear of immediate unlawful bodily injury, intoxication or anesthetic or controlled substance, and where the person in unconscious, asleep or unaware of the act.

False accusation of spousal rape may occur when a spouse alleges she did not consent to having sex with her husband after the fact where a disagreement arises over child custody. Some couples continue to have sexual relations even after they are separated. Others may continue to live together in the family households while there are going through a divorce and also occasionally have sex with one another.  Sometimes to obtain leverage in the family dissolution proceedings, one spouse may make a false or exaggerated claim against another spouse as to provide them leverage in child custody matters or spousal support. Under California Family Code section 3044, when the court makes a finding that a party seeking custody of a child has perpetrated domestic violence, including rape as the most egregious type of violence, the victim spouse is awarded sole legal and physical custody.  There is a rebuttable presumption that one who has committed domestic violence is not in the best interest of the children to be with them.  Moreover, Under Family Code 4320, an allegation of spousal rape will also provide a tremendous leverage for spousal support for the victim spouse and give rise to a civil lawsuit against the perpetrating spouse for his 50 percent interest in the community assets and wealth.

Generally, you will see the victim spouse file a domestic violence – DV100 and DV110 Restraining Order along with a police report to obtain a lock-out order from the primary residence and try and obtain full custody of the children.  It is during these early stages that it is imperative to obtain an experienced defense attorney who can navigate through the family, civil, and criminal court proceedings to prove that the victim has a hidden agenda.

Other instances of false accusation of spousal rape occur for immigration purposes.  If a person is illegal in the United States or out of status, when an allegation of domestic violence is made, the victim spouse may apply for a U-Visa. A U-Visa will allow the victim spouse to now be in legal status as well as apply for a work permit.    

Elements of Spousal Rape Based on Intoxication – Penal Code 262(b)(2)

When a person is charged with a spousal rape while she is intoxicated, the people must prove the following elements:

1.The defendant had sexual intercourse with a woman;

2.He and the woman were married to each other at the time of the intercourse;

3.The effect of the (intoxication or controlled substance prevented the woman from resisting; and

4.The defendant knew or reasonably should have known that the effect of the intoxication or substance prevented the woman from resisting.


Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty.


In prosecutions for spousal rape 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 for spousal rape.

If you have a pending child custody battle, legal separation, restraining order, or a criminal case for spousal rape or abuse, call the Khachatourians Law Group for a criminal defense consultation – 818-590-8294.