Yes, you may face criminal charges for raping your wife in Virginia.
Until 1975, every state had an exemption for marital or spousal rape. Marriage provided implied consent for sexual intercourse, and a husband could legally have sex with his wife without her consent.
Today, this is no longer the law in Virginia. Now, marital rape is a felony, the same as non-marital rape.
How the Criminal Code of Virginia Defines Rape
The Criminal Code of Virginia defines rape in Section 18.2-61. According to the law, a person is guilty of rape if:
- They engage in sexual intercourse with a complaining witness against their will
- They cause the complaining witness to have sex with another person against their will
- By force
- By threat
- By intimidation
- The complaining witness’s mental incapacity
- The complaining witness’s physical helplessness
Virginia Court Case Example
A specific court opinion from 2021 illustrates the lack of a marital exemption for criminal rape charges in Virginia. In Poole vs. Commonwealth (2021), Kelly Lamont Poole was convicted of rape. He appealed the trial court’s decision based on insufficient evidence. He contended that the prosecution failed to prove beyond a reasonable doubt that the sexual activity was nonconsensual. His wife said the marriage was very rocky, with “lots of infidelity” and “lots of pain.” They had discussed separating for years but continued to share a bed. They had “separate blankets with a pillow between the two of us.”
One night, he climbed on top of her and engaged in intercourse despite her protests. She reported the rape to the police the next day and was examined at the hospital. She had bruises on her legs. Poole initially denied having sex with her, but DNA evidence was found. The court found his testimony not credible, as he changed his story. His appeal was denied. Under Virginia law, Poole was guilty of rape, even though the victim was his spouse.
Possible Penalties for Marital Rape in Virginia
A person who is charged with rape in Virginia, including spousal rape, faces a minimum jail sentence of five years. They can face up to life in prison for rape at the discretion of the court or jury. Some circumstances can call for a mandatory minimum sentence of 25 years. These include:
- Abduction and kidnapping (§18.2-47, §18.2-48)
- Burglary (§18.2-89)
- Entering a dwelling with the intent to commit murder, rape, robbery, or arson (§18.2-90)
- Entering a home with the intent to commit larceny, assault and battery, or other felonies (§18.2-91)
- Aggravated malicious wounding (§18.2-51.2)
In the case of spousal rape, abduction or aggravated malicious wounding are possible additional charges. It is less likely that a court would uphold the two charges related to entering a dwelling when the defendant also lives there. However, this matter can become more complicated if the spouses are living apart.
What to Do If You’re Charged With Raping Your Spouse
The first and most important thing to do if you are charged with raping your spouse is to call experienced Chesapeake criminal defense lawyer James Short. I can explain the charges against you, protect your legal rights, and start formulating a sound defense strategy.
When you face rape charges, it is important not to speak to anyone about the case except your lawyer. This includes trying to reconcile with your spouse. Anything you say, like in a police report, may be used as evidence against you.
Whether you made an honest mistake, had an error in judgment, or are facing rape charges based on made-up facts, I encourage you to schedule an initial consultation as soon as possible.