Can a husband date rape his wife if she knowingly and voluntarily intoxicates herself?

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Can a husband date rape his wife if she knowingly and voluntarily intoxicates herself?

We had relations in the past while she was under the influence and it was not a problem. She said she asked me not to have sex with her while she was in that condition before but I don’t remember that at all. I definitely know she didn’t say that the 2 times this happened.

Asked on May 15, 2009 under Criminal Law, Maryland

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 14 years ago | Contributor

Under Maryland law, a person may be prosecuted for an offense described below if ; (1) the parties are living together, and (2) the person uses force against the will and without consent of the person's legal spouse.

  • First degree rape if the person engages in vaginal intercourse by force or threat of force against the will and without the consent of the other person. Article 27, Section 462(a)
  • Second degree rape by force or threat of force against the will and without consent of the other person. Article 27, Section 463(a)(1)
  • Third degree sexual contact if the person employs a dangerous or deadly weapon, or inflicts suffocation, strangulation, disfigurement or serious physical injury. Article 27, 464B(a)(i) and (ii)

There are questions as to the consent issue since you wife was intoxicated; additionally you did not address the issue of what, if any, force was used.  Bottom line, if you think that your wife will try to pursue this as a criminal matter you should see an attorney in your area.


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