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Posted: April 20th, 2022
categorical defense
categorical defense
It is not a categorical defense to a charge of rape that the victim was the defendant’s spouse, nor that the parties were still living in the same residence. Forcible rape of a spouse is still rape. However, the question of consent can be more difficult, since the willingness of the victim to engage in sex might change during the act. Also, since as married persons the victim and the defendant undoubtedly have a history of sex together, the relevance of “past sexual contact” between them, which is normally admissible on consent, presents a problem. How should these questions be answered? For one court’s view, see People v. Hernandez, 2011 WL 4503335 (Cal. App. 2011). Are you satisfied with all aspects of the decision?
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defense categorical
The fact that the victim was the defendant’s spouse, or that the parties were still living in the same house, is not a categorical defense to a rape charge. Forcible rape of a spouse is still considered rape. However, the issue of consent can be more difficult because the victim’s willingness to engage in sex may change during the act. Furthermore, because the victim and defendant are married, they undoubtedly have a history of sex together, so the relevance of “past sexual contact” between them, which is normally admissible on consent, presents a problem. What should the answers be to these questions? People v. Hernandez, 2011 WL 4503335, provides one court’s perspective (Cal. App. 2011). Are you pleased with every aspect of the
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