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Marital Rape: Marriage Doesn’t Necessarily Mean Consent

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Marital Rape Laws in Texas

In many sexual assault cases, charges are filed after a person engages in sexual contact with another person without that person’s consent. While this may seem like an activity that occurs between strangers, the truth is that it can happen between married couples as well. Under Texas law, the fact that two people are legally married does not automatically create consent for sexual activity.

Having non-consensual sex in Texas is classified as rape and it can lead to serious legal punishments. In addition to jail time, a person convicted of felony sexual assault may be forced to register as a sex offender for life.

History of Marital Rape Laws

In the recent past, laws in all 50 states did not include provisions to define marital rape. As recently as the 1970s, a husband who forced his wife to have sex would not necessarily have to face criminal charges.

This type of legal reasoning is based on very old laws that viewed marriage as a type of property contract. For hundreds of years, marriage was considered a legal contract in which the wife became the property of the husband. In this type of arrangement, the husband was entitled to his wife’s consent for the duration of the marriage.

This way of thinking has changed drastically. By the early 1990s, every state in the US had created laws defining and prohibiting marital rape.

Defining Marital Rape

Section 22 of the Texas Penal Code defines sexual assault as causing the mouth, anus or sexual organs of any person to be penetrated without consent or engaging in any sexual contact with a child.

Consent is a key element in sexual assault cases. In these cases, consent does not simply mean saying “yes”. Forcing or threatening someone to agree to sexual activities does not constitute legal consent. For the purposes of the law, consent has not been given if:

  • Violence or threats have been used
  • A person is unconscious or unaware of the sexual activity
  • The person is mentally incapable of understanding consent
  • A public servant or authority figure demands sexual favors
  • A clergy person or religious figure compels sexual favors
  • A person agrees to sex after being given a drug

According to Texas law, the presence of a “yes” or the lack of a “no” doesn’t necessarily establish consent. This also applies to married couples. A marriage certificate does not entitle one spouse to sex with their partner. Each partner in the marriage has the ability to give consent or refuse to give consent. Engaging in sexual penetration without consent or by obtaining consent illegally is grounds for arrest, prosecution and punishment.

Legal Penalties

Under the law, a sexual assault that is committed in the context of a married relationship can be punished like any other sexual assault. It is a felony offense to commit sexual assault in the state of Texas.

This crime can be punished with:

  • Two or up to 20 years in state prison
  • A fine of up to $10,000
  • Mandatory registration as a sex offender upon release from incarceration

Although non-consensual sex is illegal in all cases, a legal marriage does provide one exception to prosecution in certain cases. The Texas Penal Code specifies that a person who has sex with a minor aged 17 or younger while being four years or more older than the youngest party can be charged with sexual assault. This is true even if the sex was consensual. This is because minors in Texas don’t have the legal right to consent to sex in most cases.

However, if both of the parties consent to sex and they are in a legal married relationship, sexual assault charges may be dropped. Texas has an exception to statutory rape in the context of a legal marriage. However, non-consensual sex is still illegal in all cases.


Are you being charged with marital rape? It’s important to invest in a strong legal defense. Contact the Law Office of Brett A. Podolsky today at (713) 227-0087.

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