What Is Sexual Assault in a Marriage?

Sexual assault can happen anytime a person withholds consent. Under the historical common law, consent was implied in a marriage, meaning sexual assault only occurred between strangers or non-committed partners.

This is an outdated notion. Today, sexual assault in marriage can lead to criminal charges. A Dayton sex crime lawyer from Gounaris Abboud can help you face these charges and fight for a positive outcome.

What Is Spousal Sexual Assault?

A marital sexual assault can trigger two charges.

Marital rape occurs when sexual conduct involves the following circumstances:

• The accused impaired the victim with an intoxicant or drug.
• The accused compelled the victim using force or threats.
• The victim couldn’t resist due to a mental or physical condition.

Marital sexual battery happens when the accused engages in sexual conduct under the following conditions:

• Using coercion to overcome ordinary resistance
• While the victim is impaired
• When the victim was unaware of the act

Sexual battery can also occur in other circumstances if one of the spouses is underage.

What Is the Difference Between Sexual Assault and Sexual Abuse?

Ohio law is very precise in its language. However, neither “sexual assault” nor “sexual abuse” appears in the state’s statutes. Instead, the laws include criminal offenses of rape, sexual battery, gross sexual imposition, and sexual imposition.

The difference is that the worst offenses of rape and sexual battery require sexual conduct, including intercourse, oral sex, or penetration, however slight. This is roughly equivalent to sexual assault.

The lesser offenses of gross sexual imposition and sexual imposition only require sexual contact, such as touching the victim’s breast, genital area, or buttocks. These offenses are roughly equivalent to sexual abuse.

Ohio’s Definition of Consent

Ohio’s statutes don’t define “consent”. Rather, they describe several instances in which a victim can’t consent, including the following circumstances:

• They’re too young to provide consent.
• Their judgment or control is impaired.
• They can’t appreciate what’s happening.
• They don’t understand the nature of the sexual act.
• They were coerced using fear or duress.

Although Missouri’s statutes don’t define consent, it is spelled out by case law. Generally, consent must be voluntary, reasonably clear, and specific. Moreover, the person giving consent can withdraw it if they change their mind. Consent may be verbal or inferred from the person’s actions.

Does a Marital Relationship Forgo the Need for Consent?

Two centuries ago, when wives were seen as belonging to their husbands, marriage was tantamount to consent. However, under modern law, consent is always required.

Moreover, consent in a marriage has the same definition and follows the same rules as consent between any other adults in any other type of relationship. Thus, spouses must freely, clearly, and specifically consent to sexual conduct.

If a spouse uses physical force or sexual coercion, marriage isn’t a valid defense. Spousal sexual abuse and assault are real, and prosecutors take these offenses seriously. If you’re convicted of sexual assault in marriage, you’ll have a felony criminal record and face significant prison time.

Gounaris Abboud Successful Case

When emotions run high, some spouses and significant others turn to lies and false allegations. In a case our firm recently handled, our client had a verbal altercation with her boyfriend. She called the police to remove him from their apartment, but when they arrived, he attempted to turn things around, reporting that she had assaulted him.

Our client was charged with domestic violence and assault. The potential punishment for a conviction would have been six months in jail and up to $1,000 in fines.

We were able to secure a dismissal of all charges by asking for a jury trial. These cases are often “he said, she said” in nature. Recognizing the risk, the prosecution chose not to go forward with the charges.

Potential Consent Concerns for Spouses

Spouses often fall into a routine that potentially prevents them from exercising the caution they would have exercised when they were single. This complacency is one of the biggest concerns for spouses. Expecting sex might open the door to demanding it despite a lack of interest by one spouse.

Moreover, you must be cautious if your spouse is intoxicated or otherwise incapacitated. Marriage isn’t a blank check for nonconsensual sex or sexual harassment in marriage. If your spouse can’t consent, the safest route is to avoid it.

Other potential consent concerns include getting aggressive in a way that you interpret as playful but your spouse interprets as coercion or force. Being married to a sexually abused spouse might require extra caution, as you could trigger them into believing you’re getting aggressive.

Additionally, hurt feelings can lead to false allegations. For example, if you and your spouse are going through a rough patch, they might try to get revenge against you by inventing a relationship rape story.

This isn’t to say that rape in relationships never occurs. Overcoming the virtual immunity spouses used to have from committing sexual assault in marriage was a significant development in the law. However, it also creates potential pitfalls for spouses.

What to Do If You Are Accused of Sexual Assault

If the police have investigated or arrested you for sexual assault, your actions might determine whether you preserve your freedom and reputation. Consider taking the following steps:

• Contact an experienced lawyer to advise you.
• Preserve evidence, such as messages, clothing, and home security video.
• Refrain from posting about your case on social media.
• Discuss any protective orders against you with your lawyer and abide by them.
• Remain in contact with your lawyer and attend all court dates.

Most importantly, engage with your attorney to prepare your defense. Ask questions like “What is sexual abuse in a marriage?” and “What is spousal rape?” so you can help them gather evidence and identify witnesses to challenge the allegations against you.