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Spousal Rape Law & Defense
PC 262 & PC 261 Crimes

Information on the crime of spousal rape is found in at California penal code section 262. Spousal rape is an act of sexual intercourse with a woman who is the defendant's spouse, and which is accomplished by force, fear, or threats, or where the defendant's wife could not consent due to incapacity or intoxication.


Consent means that the wife freely, knowingly, and voluntarily agrees to engage in sexual intercourse. A wife cannot consent unless she knows to what she is consenting. For example, if victim was induced to believe that the defendant was her husband, then the wife has not knowingly consented to have sex with the defendant (PC 262).

Sexual Intercourse means penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is no required.

Note: A wife who initially consents to an act of intercourse with her husband may change her mind during the act, and if she communicates this withdrawal of consent to her husband, through words or conduct, then the sexual intercourse is unlawful and without consent.


Felony Sentence: Spousal rape charged as PC 262(a)(1) is classified as a felony. If found guilty of spousal rape pursuant to this code section the defendant may face up to 3,6, or 8 years in prison, depending on the facts of the case and the defendant's criminal history.


Probation: a probation sentence is a period of supervision instead of prison. Probation sentences are allowed in spousal rape case, but the are not guaranteed. In fact, a probation sentence in a spousal rape case is allowed only if the court finds special reasons to allow such a sentence. Special reasons means that the interest of justice would be better served if the defendant did not go to prison.

CIMT: If the defendant is not granted a probation sentence in a PC 262(a)(1) cases, then he must  serve his incarceration in a state prison, as opposed to a local county jail. Also, prison sentences related to spousal rape crimes may not be split (served partially out of prison on work release) or suspended.


Moral Turpitude Crime: Spousal rape charges are considered to be crimes of moral turpitude, which means that spousal rape is considered to be morally wrong. Licensed professionals, such as doctors, nurses, lawyers, etc., who suffer a conviction for any crime considered to be a crime of moral turpitude, may have his or her professional license revoked or suspended. In addition, immigrants who are convicted of crimes of moral turpitude may be deported from the United States.

Three Strikes Law: PC 262(a)(1) Spousal rape by force, fear, or threats is a serious and violent offense under California law (as those terms are defined under California law). this means that spousal rape is a strike offense under California's Three Strikes Law and the defendant may only earn up to fifteen percent (15%) credit of his sentence for good behavior while in prison.

PC 290 Registration:  PC 262(a)(1) convictions include a requirement to register as a sex offender with local law enforcement.

Bail: $250,000 (2020 San Bernardino County). Bail is amount of amount paid to the court, usually through a bail bondsman hired by the defendant's family, that is intended to serve as surety that the defendant will appear as ordered through the criminal process after being charged with a crime. If the defendant does not appear as ordered he forfeits the bail. Bail may be increased or decreased for several reasons in a spousal rape case, including the defendant's previous failure to appear for court (if any), his criminal history, the circumstances of the case, his ability to pay, and more. In some rare cases, the defendant may be released from custody before the conclusion of the case without the need for bail (Own Recognizance Release).

Additional Punishment: In addition to any jail or prison sentence, if convicted of the crime of spousal rape, the defendant may face some, or all, of the following punishments: restitution to wife, fines, criminal protective orders, enhanced punishment for future criminal convictions, firearm ownership prohibition, civil lawsuits, loss of employment or immigration status, and more.

Note: Community property may be used to pay for victim wife's restitution without an offset award to defendant husband.

Defense to Spousal Rape

Common defenses to spousal rape include: consent, reasonable interpretation that the alleged victim consented, mistake of fact, statute of limitations, coerced confessions, police investigation misconduct, intoxication, insanity, insufficient evidence of penetration or sexual intercourse, and more.

Note: The defense of consent is probably the most commonly used defense in spousal rape cases. To be clear, if the woman has withdrawn her consent in the during sexual intercourse then communicating that fact must be clear by words or conduct. If the husband's wife does not consent, but secretly keeps that fact withheld after agreeing, b words or conduct, to engage in sex with her husband, then the defendant could have a defense against his wife's claim that she withdrew her consent.

To learn more about the crime of spousal rape and defenses to penal code 262(a)(1), contact our San Bernardino County criminal defense lawyers today for a free consultation. Our sex crimes attorneys have handled hundreds of sex crimes in the Inland Empire. Call today!


Quick Legal Reference​

Crime: Spousal Rape by Force or Fear of Injury

Code: No. PC 262(a)(1) (CalCrim No. 1000-1005)

Wobbler: PC 262(a)(1) is not a wobbler. This means that PC 262(a)(1) is only charged as a felony.​


Incarceration: ​PC 262(a)(1) prison sentence range: 3, 6, or 8 years.

Probation: Probation is not common may be available in special PC 262(a)(1) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including defendant's criminal history and the facts of the case.​

PC 1170(h)): No. PC 262(a)(1) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.

Strike: PC 262(a)(1) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent offense (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.

Credits: 15% good conduct credits available.

CIMT: PC 262(a)(1) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:

  • Immigration problems

  • Professional Licensing problems

  • Impeachment on credibility


Firearms: PC 262(a)(1) convictions bar defendant from owning or possessing a firearm.

Registration: If convicted of PC 262(a)(1), defendant is required to register as a sex offender with law enforcement. 

Bail: $250,000 (San Bernardino County)

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