In Nevada, spousal rape is the same as rape /sexual assault of a non-spouse and receives the same punishment. Only when force or threats of force are used, the law seems to indicate that marital rape is illegal. Even if no force or threats of force are used, a non-spouse can be convicted of rape in contrast, and all that matters is that the victim did not give consent or was too incapacitated to give consent. Today, we at Kajioka & Associates, Attorneys at Law would like to discuss marital rape in Nevada.
What is Spousal Rape
When one spouse employs use of force, or threats of force, to have sexual penetration with the other makes it spousal rape. “It is no defense to a charge of sexual assault that the perpetrator was, at the time of the assault, married to the victim, if the assault was committed by force or by the threat of force” is what states under NRS 200.373 . This is arguably not rape under state law because no force or threats of force were used if one spouse penetrates his/her sleeping spouse. Since the awake spouse was not being violent or threatening, it might not matter that there was no mutual matrimonial consent, in short. It would definitely be rape for the other spouse to continue with the sex act by using force or threats of force, if the sleeping spouse wakes and objects. It is unclear how exactly courts interpret NRS 200.373, there is no case law in Nevada regarding spousal rape.
Fighting Marital Rape Charges
In spousal rape cases, there are a few possible defense arguments that Nevada criminal defense lawyers may use.
1) There were no force or threats implemented. Marital sex is a crime only when force or threats of force were used under Nevada’s spousal rape law. The spousal rape charges should not stand, unless the D.A. can prove the defendant battered, assaulted, or threatened the defendant with battery.
2) Absence of sex. There is little or no evidence of whether sexual intercourse or a penetrative sexual act occurred. The case should be dismissed as long as prosecutors cannot prove beyond a reasonable doubt that sex occurred.
3) False accusation of the defendant. Anger, jealousy, or revenge is a common instigator for spouses to accuse their husbands or wives of domestic violence or marital rape. In child custody or divorce proceedings they levy false accusations to gain leverage in some cases. The defense attorney would search for any recorded communications to show that the accuser had a motivation to lie in these situations. The case should be dropped if the D.A. realizes the accuser lacks credibility.
Penalties for Spousal Rape Under NRS 200.373
Under Nevada law, marital rape is a category A felony. Should the victim spouse sustained substantial bodily harm, then the punishment can include
– Life with a parole possibility after 15 years, or
– Life in Nevada State Prison without the possibility of parole
The sentence for violating marital sexual assault laws is life in prison with the possibility of parole after 10 years otherwise. In any case, the defendant upon conviction would need to register as a Tier III sex offender for life. Under NRS 176.0931, due note that sexual assault also carries lifetime supervision. However, after 10 years it may be possible to end it.