There once was a time when people would ask the question “can a husband rape his own wife?” It’s one of those riddles such as “which came first, the chicken or the egg?” The question, of course, is a lot more complicated than it appears. It posits the question, if a husband forces his own wife to have intercourse when she is not in the mood, is it rape? What if he seduces her? What if she has a headache and tells him no? What if it escalates to physical violence? The point is, when does it actually become rape? Legitimate rape, so to speak.
The easy answer is no means no, so if the wife says no, it’s considered sexual assault. In marriages it would be considered domestic violence. It was once looked at as a non-crime, and spousal rape, or intimate partner rape, was not widely prosecuted even if it was deemed a crime. That’s all changed over the years as our society became more enlightened and less tolerant of crimes against vulnerable populations such as women.
Despite the success of campaigns to make spousal rape a crime nationwide by MS., the Women’s Law Project and the Rape is Rape project, laws to protect married women from unwanted sexual contact are up to the states to define and enforce.
In October of 2011, The Uniform Crime Report Subcommittee of the FBI’s Criminal Justice Information Services (CJIS) in a unanimous vote expanded its official definition of rape in the UCR. Previous to the change, the definition of rape, created in 1929 and static until now, defined forcible rape” as “the carnal knowledge of a female, forcibly and against her will.” It excluded victims of forced anal or oral sex, rape with an object, statutory rape and male rape.
The new definition–of “rape,” no longer “forcible rape”–defines the crime as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. If the victim is the wife of the perpetrator, that’s spousal rape.
Current Florida law provides for Sexual Battery
Chapter 794, Section 011 defines sexual battery as oral, anal, or vaginal penetration by, or in union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.
Subsection (3) provides that a person who commits sexual battery upon a person 12 years of age or older, without that person's consent, by use or threat of a deadly weapon or through actual physical force that is likely to cause serious personal injury commits a life felony.
Subsection (4) states that a person who commits sexual battery upon a person 12 years of age or older without that person's consent, under any of the following circumstances, commits a felony of the first degree:
(a) When the victim is physically helpless to resist.
(b) When the offender coerces the victim to submit by threatening to use force or violence that is likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat;
(c) When the offender coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim reasonably believes that the offender has the ability to execute the threat in the future;
(d) When the offender, without the prior knowledge or consent of the victim, administers or has knowledge of someone else administering to the victim any narcotic, anesthetic, or other intoxicating substance which mentally or physically incapacitates the victim;
(e) When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact; or
(f) When the victim is physically incapacitated.
Subsection (5) states that a person who commits sexual battery against a person 12 years of age or older, without that person's consent, and does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree.
(6) Sexual battery defined by subsection (5) is inclusive in any sexual battery offense charged under subsection (3) or (4).
The penalties for rape, spousal or otherwise, are severe and charges can be brought against you on the strength of the alleged victims’ testimony. If convicted, you could face anywhere from 15 years to life. If you are charged with sexual battery as a result of the testimony of your spouse, you need a competent criminal lawyer on your side.