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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Court of Appeals Issues Opinion on Spousal Rape

Kelly Lamont Poole v. Commonwealth of Virginia involves a conviction under Code § 18.2-61(A), Virginia’s non-consensual rape statute (as opposed to “status-based rape” commonly referred to as “statutory rape”).  Since 2006, Code § 18.2-61(A) has clearly stated that it applies to non-consensual “sexual intercourse with a complaining witness, whether or not his or her spouse.”  If you know the history of common law rape, you know that it was not possible for a man to rape his wife, this stemming from the time — not really that long ago — when women were considered the property of their husbands and, thus, lacking in free will.  The law has evolved over time and it is now clearly understood that “no means no” regardless of the status of the victim.

Well, “clearly understood” may be something of an overstatement, Poole being a case in point.  Without going into the details, it is clear that Poole and the victim were married at the time of the incident in question. Poole understood the bond of matrimony to mean that he could sleep with whomever he wanted — there was “a lot of infidelity” during the six year marriage — and his wife could stay home, raise the kids and keep her d*** mouth shut if she didn’t like it.

While the wife described their relationship as “rocky” and said there had been discussions of separating, the couple were living together at the time of the incident that led to the rape charge against Poole. Although the two shared a bedroom out of necessity, as the apartment had only two bedrooms and the children occupied the other, the wife indicated that when they slept in the same bed (that is, when Poole was not sleeping somewhere lese away from the home) they were separated by a barrier of pillows and used separate blankets.

One evening when Poole was spending the night, he “suggested” the couple have intercourse.  The wife refused and went to sleep.  Sometime later she awoke to find Poole on top of her, pinning her down.  The incident lasted about 20 minutes and let the wife sore and bruised.

As is often the case, while there was forensic evidence suggestive of forced intercourse, the Commonwealth’s case rested upon the victim’s testimony that she had not consented to engage in intercourse with Poole against his instance that she had been a least reluctantly willing to submit or had initiated the encounter.  The trial court, sitting without a jury, found the wife’s version more credible.

After the trial, Poole asked for reconsideration, arguing that despite the language of the statute, the Commonwealth was still required to prove that there had been a “de facto” termination of the marriage.  Poole contended that Code § 18.2-61(A) was merely a codification of the common law as it existed at the time the law was amended to include a spouse as a potential victim.  Accordingly to Poole, this meant that the Commonwealth must prove that the marriage had been terminated by conduct of the victim — that that the spouse had clearly revoked the implied consent presumed to flow from the marital state.

Poole is technically correct that at when Code § 18.2-61(A) was amended in 2006 there was case law suggesting that the Commonwealth had to present evidence that the victim had affirmatively withdrawn the implied consent of marriage, though it was probably not required to be the equivalent of a “de facto” termination of the marriage.  The circuit court, however, denied the motion for reconsideration without comment, so it was not clear whether the court agreed with Poole, but found that the Commonwealth had met the burden, or found that the amended statute eliminated the requirement to prove the withdrawal of consent by the spouse victim.

Today, the Court of Appeals makes clear that the amendment of Code § 18.2-61(A) abrogated any distinction between spousal and non-spousal rape.  The Court holds that “the General Assembly’s intent to remove any additional elements needed for a conviction of rape when the defendant and victim are spouses . . . could not be more clear in the added language of the current statute that prohibits forcible sex with another ‘whether or not his or her spouse.’”

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