Texas Marital Rape Laws and Penalties

Under Texas law, rape is defined as a criminal offense that occurs when a person engages in non-consensual sex. The law defines non-consensual sex as any sexual activity that involves a participant who does not agree to engage in the activity. This can include the direct refusal of sex or the inability to give consent, such as sexual activity in which one of the participants is unconscious, drugged, threatened or coerced.

Marital rape exemptions were eliminated in Texas on September 1, 1994. A victim of marital rape can make charges in the same manner as other sexual assault cases.

Statutory Marital Rape

Texas law includes an exemption for statutory marital rape. Statutory rape is a crime in which one of the participants does not meet the legal age requirement for giving consent. In Texas, statutory rape can occur when a person under the age of 17 engages in sex with a person who is four or more years older than them. Even if the minor agrees to engage in sex with the older person, this activity is called statutory rape because the minor does not have the legal ability to consent to sex.

However, under Texas law, a married couple living in Texas who engage in sex that would otherwise be statutory rape are exempt from prosecution. The statutory marital rape exemption means that a married couple who engages in consensual sex in which one spouse is a minor and the other spouse is four years older than the minor are not committing a crime.

Marital Rape Penalties

Being convicted of rape can carry significant legal penalties. In many cases, a rape conviction in Texas can lead to:

  • Conviction on a second degree felony charge
  • Incarceration in prison for two to 20 years
  • A fine of up to $10,000

Cases of sexual assault that include physical violence resulting in serious injury may be prosecuted as aggravated sexual assault. The use of drugs like rohypnol may also be grounds for an aggravated sexual assault charge. This charge can lead to:

  • Conviction on a first degree felony charge
  • Incarceration in prison for five years or up to a life sentence
  • A fine of up to $10,000

Other Penalties

In some cases, a defendant who is convicted of marital rape my be required to register as a sex offender. This registration may prevent the defendant from obtaining certain types of jobs and they may become ineligible for government aid. Defendants who are found guilty of this crime may also be prohibited from having any contact with their spouse and the conviction may be grounds for a divorce.

Marital Rape Defenses

There are several different ways in which an attorney could construct a legal defense for a person that has been accused of rape. A few of them include:

  • Innocence
  • Lack of evidence of rape
  • Consent was given

One of the most common defenses in rape cases is a claim of innocence. In other words, the defense attorney could argue that the alleged rape never actually took place. This could involve introducing evidence to show that the defendant was not at the location where the rape was said to have taken place at the time it was alleged to have occurred.

It might also be possible to argue that there is insufficient evidence to issue a conviction. An attorney might argue that there is no conclusive physical evidence to indicate that the alleged rape actually took place.

The defense attorney might argue that the alleged victim actually gave consent to the sexual activity and then later claimed that it was non-consensual. It can be difficult to prove that a person did or did not give consent and this fact might have a big impact on the case.


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About the Author

Law Office of James Alston. serves people who need legal assistance in their Criminal Defense Cases in Texas.

Houston Criminal Lawyer James Alston represents clients in the Houston area, including Pasadena, Sugar Land, Missouri City, Channelview, Conroe, Galveston, Angleton, Richmond, Rosenberg, Beaumont, Galveston County, Ft. Bend County, Montgomery County, Brazoria County, Harris County and Jefferson County in Texas.