For decades, California’s "spousal rape exception" treated sexual assault within a marriage as a lesser offense, suggesting marital status mitigated the severity of the act. As of 2026, those days are over.
Following significant legislative shifts, California has fully eliminated this exception. Marriage is no longer a shield against sexual assault allegations. Under current law, rape is now prosecuted equally regardless of the relationship between the parties involved.
Understanding the Repeal of the "Spousal Exception" in Penal Code 262
Historically, California maintained a "separate but unequal" system by distinguishing between Penal Code 261 (rape) and Penal Code 262 (spousal rape). This distinction often allowed for more lenient sentencing, including probation instead of mandatory prison time.
With the passage of Assembly Bill 1171, California repealed PC 262 and eliminated the "marital discount" for sexual assault. Today, all rape allegations, regardless of the parties' marital status, are prosecuted under the same rigorous standards and severe penalties of Penal Code 261.
The Shift from Spousal Rape to a Unified Definition of Rape
With the repeal of PC 262, the legal system moved toward a unified definition of rape. This means that a spouse can now be charged under Penal Code 261 PC, the same statute used for any other rape allegation.
To prove rape, the prosecution must establish that sexual intercourse occurred, without consent, by force, violence, duress, menace or fear of immediate bodily injury. The focus has shifted entirely from the relationship of the parties to the presence of consent.
How SB 258 (The Justice for Disabled Spouses Act) Closed the Final Loophole
While AB 1171 eliminated the general spousal rape exception, a technical loophole remained regarding spouses with disabilities. Senate Bill 258, the "Justice for Disabled Spouses Act," officially closed this gap.
This legislation ensures that a spouse who commits a sexual act with a partner incapable of consenting due to a disability or mental disorder is held to the same standard as any other defendant.
The law confirms that while a disability does not inherently prevent someone from consenting, marriage can no longer be used as a legal shield when a spouse is truly incapable of giving consent. SB 258 reinforces that the bodily autonomy of disabled individuals must be protected within the marital home just as it is elsewhere.
The Legal Reality: Marital Status Is No Longer a Defense to Sexual Assault
In the past, defense attorneys might have argued that the "implied consent" of marriage or the specific nature of a marital relationship should result in reduced charges. Today, that argument holds no weight in a California courtroom.
If a spouse says "no," or is unable to say "yes" due to intoxication, unconsciousness, or disability, any further sexual act is a crime. The "marital defense" is effectively dead. This shift means that the prosecution no longer needs to jump through extra hoops to prove a crime occurred just because the parties are husband and wife.
The Intersection of Domestic Violence and Sexual Assault Charges
It is common for spousal rape allegations to arise alongside other domestic violence charges, such as corporal injury on a spouse (PC 273.5) or domestic battery (PC 243(e)(1)).
When these charges intersect, the legal stakes skyrocket. A domestic dispute can quickly escalate into a life-altering felony case if sexual assault is alleged. Because domestic violence cases often involve "he-said, she-said" dynamics, the elimination of the spousal exception makes these cases even more complex to defend.
Prosecutors often use the context of a controlling relationship or prior domestic violence incidents to bolster their rape case, even if those prior incidents did not involve sexual acts.
Critical Penalties: Mandatory Sex Offender Registration and Prison Time
With the elimination of the spousal exception, those convicted of spousal rape in California face the same penalties once reserved for non-marital cases. A conviction is life-altering and typically includes:
- State Prison: A mandatory sentence of 3, 6, or 8 years.
- Three Strikes Law: As a violent felony, a conviction counts as a strike, doubling penalties for any future offenses.
- Financial Burdens: Court-ordered fines reaching up to $10,000.
- Lifetime Registration: Under SB 384, a conviction usually triggers Tier 3 sex offender registration. This requires lifetime registration under Penal Code 290, permanently restricting where you can live and work.
How These Legislative Changes Impact Your Criminal Defense Strategy
The elimination of the spousal exception has fundamentally changed how defense attorneys approach these cases. Attorneys can no longer rely on the status of the marriage to mitigate the charges. Instead, we must focus on the core facts of the encounter.
Challenging Consent Allegations in a Marital Context
In a long-term marriage, consent is often nuanced. A defense strategy may involve demonstrating a history of consensual behavior that contradicts the current allegations. However, we must be extremely careful; the law is clear that consent can be withdrawn at any time. We look for evidence that the lack of consent may be a fabrication arising from a pending divorce, child custody battle, or personal retaliation.
The Importance of Forensic Evidence and Witness Credibility
Because sexual assault within a marriage often happens behind closed doors, there are rarely third-party witnesses. We focus on:
- Electronic Communications: Texts or emails that show the nature of the relationship before and after the alleged incident.
- Medical and Forensic Reports: Analyzing SART (Sexual Assault Response Team) exams for inconsistencies.
- Credibility Impeachment: Investigating whether the accuser has a motive to lie or if their story has changed over time.
Why You Need a Dedicated Sex Crimes Defense Attorney
A rape charge involving a spouse is no longer a private family matter. It is a high-stakes felony prosecution. California authorities do not need a spouse's permission to pursue a conviction, and they will use every available resource to do so. With your freedom and future on the line, you need a dedicated sex crimes defense team that can dismantle the prosecution’s narrative and navigate these aggressive new laws.
Protect Your Future—Contact Ridley Defense for a Confidential Case Review
The laws have changed, and the risks have never been higher. At Ridley Defense, we provide aggressive, discreet, and highly skilled representation for those accused of sexual assault and domestic violence. We understand that there are two sides to every story, and we are here to ensure yours is heard.
If you are under investigation or have been charged with sexual assault of a spouse, do not wait. Contact Ridley Defense to schedule your confidential case review.
