On Monday, Assemblymember’s Cristina Garcia (D-Bell Gardens) and Evan Low (D-Campbell) announced the introduction of AB 812, and Senator Dave Cortese (D-San Jose) introduced SB 530; both are bills that aim to bring California’s rape statues into parity by requiring the same standards for spousal rape that are currently in the penal code for rape.
These bills will eliminate the “spousal rape exception” in the California Penal Code (Section 262) to ensure that “spousal rape” is treated and punished as seriously as rape of a non-spouse. Although marital rape is illegal in all 50 states, California is one of eleven states that distinguishes “spousal rape” from “rape.”
While the term “spousal rape” is not often discussed in our day-to-day vernacular, the act is nonetheless common. In fact, according to the National Coalition Against Domestic Violence (NCADV), between 10-14% of married women have been or may experience rape by their spouse. Additionally, 18% of these victims state their children have witnessed the rape.
Until 1975, every state in our Country exempted marital rape from their ordinary rape law. It remains clear that vestiges of this antiquated “marital- rape” exemption still permeate California law even to this day.
While the legal description of what constitutes spousal and non-spousal rape are now the same, the penalties for spousal rape in our state are less severe.
For instance, a person convicted of non-spousal rape is required to register as a sex offender, while a person convicted of spousal rape only must register as a sex offender if the act involved the use of force or violence that led to a prison sentence.
These disparities also extend to plea bargains. A defendant accused in the non-spousal rape of an unconscious person cannot plea bargain. But, if a defendant is married to the unconscious victim of the rape, they are currently able to plea bargain.
Bill co-author and Chair of the Legislative Woman’s Caucus Assemblywoman, Cristina Garcia said, “The idea of “spousal rape” is antiquated. In California we have long since decided that “No means No” and “Rape means Rape”. AB 812 is a simple bill that puts CA’s legal code is in line with our social values.”
Bill co-author Assemblymember Evan Low said of the legislation, “The relationship between a person who is raped and their attacker — whether they are strangers, friends, or even spouses — should not have any importance in the eyes of the law. Rape is rape. It’s one of the most vicious crimes imaginable and it should be prosecuted to the fullest extent of the law.”
“For decades, California has treated the rape of a spouse differently than all other sexual assault. While the legal description of what constitutes spousal and non-spousal rape are the same, the penalties are not,” says Senator Cortese who has authored SB 530 in the State Senate. “Attempts to equalize these heinous crimes in prior years have been met with both progress and failure alike. Time has long since passed for California to declare that rape is rape.”
“California’s spousal rape law is a slap in the face to all women and sexual assault survivors and it must go. It’s time that California law recognizes that all rape is equally serious regardless of the relationship between the victim and the perpetrator. Rape is rape, period,” says Michele Dauber, Frederick I. Richman Professor of Law and Professor at Stanford University.
Santa Clara County District Attorney Jeff Rosen says that, “As a prosecutor, I am concerned any time a law is fundamentally flawed in both statute and application. My office has tried enough rape cases to understand that RAPE is RAPE. The Spousal Rape Law will fix a historic defect in California’s rape and sexual assault laws. All victims of rape deserve to be treated with fairness and dignity by the criminal justice system. I firmly support its passage of AB 812.”