This is a very common question we hear people ask. A great deal of confusion on this matter comes from a misconception that all sexual conduct within a marriage or domestic partnership is consensual because it occurs within the confines of the relationship. This, however, is not true and Florida law applies just as much to your spouse as it would to a person you have no relationship with.
In the State of Florida, “rape” is the day-to-day term used in place for sexual battery. According to Florida Statue § 794.011, the crime of sexual battery is committed when a person has non-consensual oral, anal, or vaginal contact with another person using their sexual organ or another object.
The central element to this crime is a lack of consent. Consent, according to Florida Statute, is an intelligent and knowledgeable agreement that is voluntary and not coerced. Secondly, a lack of physical resistance from the alleged victim does not constitute consent.
In other words, just because the alleged victim did not “fight off” the alleged offender, does not mean he or she consented to the act.
This question is perhaps the true underlying source of confusion. For some, it is hard to imagine that you can “rape” your spouse because many people are under the impression that all sexual acts within marriage are consensual.
This misconception may come from places. One explanation is that some subconsciously think that if one is in a committed relationship with someone he or she has already had consensual sex with, then there are no longer any boundaries regarding sex between them.
Intimacy is a fundamental part of most romantic relationships and, as a result, is often an expectation. The question, however, is not whether or not a spouse is entitled to expect intimacy within his or her relationship. Rather, the question is whether or not a spouse can coerce his or her significant other into becoming intimate. Nevertheless, the answer is “no”, it is illegal to force your spouse to have sex.
In some religions, there are teachings that forbid a spouse from depriving sex from his or her significant other. This, however, does not concern Florida law. Marriage in the state of Florida does not strip an individual of his or her protection against non-consensual touching.
Consider another common offense that can occur in a marital relationship: domestic violence.
It is uncontested that committing physical violence against one’s spouse is a crime. Most people are not asking whether or not it is illegal to attack their spouse. For the vast majority, this would never even be in question.
If it is obvious that committing physical violence against a spouse is a crime, then why would committing sexual violence against a spouse not be equally as obvious?
It is not equally as obvious because some people think there is something different about being accused of “raping your wife” as opposed to “beating your wife”.
Perhaps there is some validity to this confusion because the courts have only recently come to this conclusion themselves.
In the case of Oregon v. Rideout of 1978, John Rideout was the first man in the United States to be charged with raping his wife while they were still living together. The publicity of this case rallied many states to begin allowing prosecution for marital rape.
There are still multiple generations of Americans among us that were around during a time when our society did not consider it possible to “rape” someone one is married to.
By 1993, however, all states in the United States no longer acknowledged being married as a legal defense to sexual battery crimes. As a result, the answer is yes: it is possible to commit rape against your spouse.
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Rossen Law Firm’s legal team understands what’s at stake when you’re charged with a crime in South Florida. We’re committed to defending you and protecting your rights. Our legal team is ready to create a customized strategy for your case to fight for the best possible outcome. We handle Criminal, DUI, Federal, Domestic Violence, Marchman Act & Baker Act cases, and more.
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