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Marital Rape Law in the UK: A guide

View profile for Philip Spicer
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Rape is an offence that most people are acutely aware of. However, the concept of ‘marital rape’ is not as widely discussed, which can result in some confusion when these types of allegations are raised.

Marital rape is extremely serious, with the sentencing guidelines being the same as any other rape case.

In this article, we discuss what marital rape is, what evidence is used to prove marital rape and what sort of sentences can be handed out for the offence.

While we hope this information is useful, please note, it should not be taken as legal advice. If you need legal support with allegations of marital rape, then please get in touch and our team can advise you.

What is marital rape?

Marital rape, also known as spousal rape, occurs where:

  • A person (A) intentionally penetrates the vagina, anus, or mouth of their spouse with their penis
  • The spouse (B) does not consent to the penetration
  • A does not reasonably believe that B consented to the penetration

The offence of rape is set out in Section 1 of the Sexual Offences Act 2003, while marital rape became a criminal offence in the UK in 1991. Prior to this date, forced sexual activity within a marriage was not considered to be illegal.

Can a woman be charged with marital rape?

Marital rape can only be carried out by a person with a penis, whether they are born as a male or following gender reassignment. This means that a woman cannot be charged with marital rape, but they can instead be charged with another similar offence, such as sexual coercion, causing a person to engage in sexual activity without consent or sexual assault.

How is marital rape proven?

During rape cases, including marital rape, it is the prosecution’s role to prove that penetration took place and that this was without the victim’s consent or without the defendant’s reasonable belief that there was consent.

Proving these points will mean relying on various pieces of evidence, some of which may be difficult to obtain given the fact that many marital rape cases stem from allegations that an incident took place in a private residence.

Forensic evidence such as DNA swabs, coupled with medical documentation of any injuries, will often be presented when an allegation of marital rape is brought forward. This evidence may only be available if the victim attended the police station or medical facility shortly after an alleged incident took place.

Any other allegations of domestic violence that were present in the relationship are likely to be used by the prosecution, as well as evidence from any witnesses who claim to have seen abusive behaviour.

It will also be assumed that, if there is evidence that an alleged victim was unlawfully detained, asleep, unconscious, or drugged, there was no consent. Additionally, there will be a presumption that there is no consent if the alleged victim would not have been able to clearly communicate consent.

Do you have to be married to be charged with marital rape?

No, despite the term suggesting otherwise, marital rape does not only apply to married couples. It can also apply to couples who cohabit but are not married, and civil partners.

What is the sentencing for marital rape?

Sentences for marital rape can vary significantly depending on the details of the case.

Generally, the maximum sentence for rape is life imprisonment, while Sentencing Council indicates that the offence range is between four and 19 years’ imprisonment.

There is also a possibility of someone being subject to a Sexual Harm Prevention order under Schedule 3 or 5 of the Sexual Offences Act 2003.

What are the mitigating factors in sentencing for marital rape?

There are various factors which could mitigate the sentence handed out for anyone convicted of marital rape. These include:

  • No previous convictions
  • Remorse
  • Previous good character and/or exemplary conduct
  • Age and/or lack of maturity
  • Mental disorder or learning disability
  • Physical disability or serious medical treatment requiring urgent, intensive or long-term treatment

What are the aggravating factors in sentencing for marital rape?

To contrast this, there are various factors which could aggravate the sentence handed out for anyone convicted of marital rape. These include:

  • Previous convictions
  • Offence committed whilst on bail
  • Specific targeting of a vulnerable victim
  • Ejaculation
  • Blackmail
  • Location of offence
  • Timing of offence
  • Use of weapon
  • Victim compelled to leave their home
  • Failing to comply with court orders
  • Offence committed whilst on license
  • Exploiting contact arrangements with a child
  • Presence of others
  • Steps taken to prevent a victim from reporting an incident
  • Attempts to dispose of or conceal evidence
  • Offence committed under the influence of alcohol or drugs

Credit for a guilty plea

In short, where a guilty plea is indicated at the first stage of proceedings, you could receive a reduction from 1/3 of a penalty for marital rape.

More information regarding the potential outcomes for indicating a guilty plea can be found here.

What should I do if I’m accused of marital rape?

If you are accused of marital rape, knowing and understanding your rights is critical. Having the support of a solicitor that specialises in sexual offence cases will likely mean all the difference when it comes to building the strongest possible defence against the allegations you are facing.

At JD Spicer Zeb, our expert criminal defence solicitors have over 45 years of experience in advising on a range of criminal law matters, with a Law Society accreditation in Criminal Litigation to demonstrate our expertise. We have established a strong track record of success and our many years of practice have allowed us to establish close relationships with many of the country’s leading criminal defence barristers.

If you are accused of committing marital rape, we are well placed to provide you with the support you need.

Related matters

We also provide support and guidance on various other matters that are related to marital rape, including:

Fees and funding

We are always clear and transparent when it comes to our legal fees.

If you need to attend court during a spousal rape case, legal aid public funding will become available in certain cases. This depends on whether it justifies the grant of public funding.

For clients who do not qualify for legal aid public funding, the alternative would be to fund the case on a private basis.

To find out more about the way we handle fees (both legal aid public funding and private fees) for marital rape defence, please use the links provided below:

Speak to our criminal lawyers today

If you are due to attend the police station in relation to marital rape, require any urgent specialist advice, or immediate representation, please do not hesitate to get in touch.

You can contact our specialist criminal defence lawyers in London, Birmingham and Manchester by telephone on:

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you quickly.

24/7 legal representation for marital rape

Please get in touch for a free consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice for rape in marriage allegations.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number at 07836 577 556.