It is a crime in all 50 states, and federal lands, for a husband to rape his wife. Spousal rape refers to sexual acts committed without a person's consent and/or against a person's will, when the perpetrator is the woman's husband or ex-husband.
Sexual acts may be accomplished against a person's will by physical force, threats of force to her or a third person, or implied harm based on prior assaults causing the woman to fear that physical force will be used if she resists.
In California, rape is found if the sexual intercourse took place:
1. Against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
2. Where the victim is unable to resist because the accused has administered, or is responsible for administering, an intoxicating, narcotic, or anesthetic substance.
3. Where the victim is unconscious of the nature of the act and the perpetrator is aware of this.
4. Where the perpetrator threatens to retaliate against the victim or any other person, and there is a reasonable possibility the perpetrator will execute the threat. Threats to retaliate include threats to either kidnap, imprison, and inflict extreme pain, serious bodily injury, or death upon the victim.
5. Where the victim is incapable of giving consent and the perpetrator reasonably should know this.
6. Where the victim is threatened, and reasonably believes the threat, that a public official would misuse their authority to incarcerate, arrest, or deport the victim or someone the victim knows.
The statute of limitations on reporting a case of spousal rape is one year. Within one year of the alleged offense, the victim must report it to medical personnel, a member of the clergy, an attorney, a shelter representative, a counselor, a judicial officer, a rape crisis agency, a prosecuting agency, a law enforcement officer, or a firefighter. However, this reporting requirement shall not apply if the victim's allegation of the offense is corroborated by independent evidence that would otherwise be admissible during trial.
If convicted of spousal rape, and probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburses the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse, restitution to the victim, including the costs of using a shelter, must come from separate property. This means that the offender's separate property is used before community property. Community property are all those assets acquired during the marriage.