Sexual Assault by a Partner: When a Spouse Commits an Offence

The idea that "there can be no rape within marriage" is a myth. Sexual assault between spouses is a defined and aggravated offence. As specialist criminal lawyers, we explain the key points: the legal framework, the partner aggravating factor, the competent court and the lines of defence.

Marriage ≠ Consent

Rape within marriage has been a defined offence since 1989. Until then, the notion of a supposed "marital duty" persisted socially, making sexual assault within marriage seem inconceivable. That conception is now entirely superseded: neither marriage nor cohabitation grants any right over the other person's body.

The guiding principle is that every sexual act requires free consent. That consent is given act by act: there is no standing consent derived from the relationship, nor does consent given on previous occasions cover later ones. It is also revocable: it can be withdrawn at any moment, even once a sexual encounter has begun. For that reason, the existence of a stable relationship, far from excluding the offence, is legally irrelevant when it comes to establishing consent, which must be present in the specific act being tried.

The Partner Aggravating Factor

Art. 180.1.4 CP imposes penalties in the upper half where the victim is or has been the offender's wife or partner. A present or past relationship does not mitigate liability: it aggravates it. The rationale is the particular vulnerability created by cohabitation and by the trust inherent in the relationship, which makes the offence easier to commit and harder to uncover.

The practical effect is significant: within the sentencing range provided for sexual assault, the court cannot move along the whole bracket but must stay in its upper section. Being a spouse or former partner is therefore not an incidental detail of the account: it directly determines the applicable penalty and demands specific attention from the defence.

Jurisdiction

Where the victim is the suspect's wife or partner, the investigation falls to the Courts for Violence Against Women, specialised bodies that concentrate this type of proceedings. This has practical consequences for the accused: specialised judges and prosecutors, very fast timelines in the initial stages and procedural treatment that differs from that of an ordinary investigating court.

From the outset, the measures associated with gender violence are also triggered: the restraining order, prohibiting any approach to or communication with the complainant; possible pre-trial detention in the most serious cases; and the inclusion of the case in the VioGén system of police risk assessment and monitoring. These measures are adopted within the first hours or days of the proceedings, often before the defence has been able to deploy its strategy, which makes legal assistance from the very first statement critical.

Defence

The usual lines of defence in these proceedings are three:

• Consent: establishing that the encounter was consensual. These events take place in private, without witnesses, and the evidence often comes down to one party's word against the other's; a rigorous analysis of credibility and of the elements that corroborate or contradict each account is the core of the trial.
• The context of a conflictive separation: when the complaint arises in the middle of a divorce or a custody dispute, the defence must place the facts in that context and examine the timing and circumstances in which the accusation is made.
• Digital evidence of subsequent normality: messages, calls and communications after the alleged events can be relevant when assessing the plausibility of the account. Preserving that material from the first moment, without altering it, is essential.

While the proceedings run their course, the presumption of innocence applies, but the suspect's position demands extreme caution: scrupulously complying with the measures imposed, refraining from any contact with the complainant and channelling every step through their lawyer.