Can a husband be convicted of raping his wife?

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Can a husband be convicted of raping his wife?

There was no violence, she only said she did not want sex. There was no penetration, only oral from husband to wife, and no resistence. She did file sexual assault charges then dropped the charges.

Asked on September 27, 2010 under Criminal Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

1) Legally yes, a husband can be convicted of raping or other form of sexual assault of his wife; there is no right to sex with one's spouse, and a spouse has the right to conset--or not--to sex.

2) Penetrative intercourse is only one form of sexual assault; oral contact can also be sexual assault.

3) The lack of overt resistance does not  necessarily mean that there was no sexual assault. If someone was incapable of resisting (e.g. due to medication, being drugged, drunk, illness, etc.) or did not resist out of a fear of what resistance might bring, it's still sexual assault even without resistance.

4) So the answer is, yes, a husband could be convicted of sexually assaulting his wife under circumstances like these. An issue of course is what could be proven by any evidence, including the testimony of the parties and their relative credibility, as well as any physicial evidence.


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