Spousal Rape

Defending against Spousal Rape Charges in New York

The act of rape is often thought of as a forced act of intercourse upon an individual that is unknown or distant from the victim. While this is certainly one type of rape there are also categories of rape between parties that have a relationship. In fact one survey of rape victims demonstrated that only a very small percentage of women were raped by strangers, the vast majority of perpetrators were known to the victim. This can make both the prosecution and defense of a rape charge to be an extremely complex matter. A core element of any rape charge is the giving of consent. This does not necessarily need to be verbal or exact but can be implied by a number of factors or signals. The interpretation of such consent can be a very grey area indeed.

One type of sexual offenses between known individuals is the charge of spousal rape. This occurs between a husband and wife. This is a more recently recognized form of rape. For many years it was common to consider sex as a conjugal right and the charge of rape not enforceable between man and wife. However within the last 20 years virtually all western countries have come to recognize this as an outlawed act. Forcing sex upon a mate can be treated as a criminal offense and requires the expert defense capabilities of a New York sex crimes defense attorney. With over 40 years of collective experience the Law Offices of Brian D. Perskin is well acquainted with defending such charges.

What is Lack of Consent?

Even though spousal rape occurs between married partners it is still considered a serious sex crime and can carry severe penalties. A key element is whether or not consent was present and existed at the time of the sexual act. There are many definitions of consent under New York Penal Code Section 130 in reference to a forced sexual act or offense. Generally the lack of consent is defined as:

• Forcible Compulsion, which is not limited to the use of actual physical force but can also encompass the threat of physical force. This can be openly stated or merely implied but it involves the placing of the victim in the fear of personal harm. It can also be a fear of another, such as a child, being harmed if sex is not given.
• Being physically helpless, such as unconscious or in any state where one is unable to physically or verbally communicate consent or lack thereof.
• Mental incapacitation, this can include being given alcohol or any intoxicating substance without consent
• The "no means no" clause which applies to intercourse. It states that if the victim expressed non-consent in a means that could be reasonably understood then this can be prosecutable