Rape within marriage, conviction carries maximum sentence of 30 years

CHARLESTON, SC (WCSC) - The Berkeley County mother who drove a van with her children inside into the ocean accused her husband of allegedly raping her in a Myrtle Beach hotel room. Ebony Wilkerson told police it happened three days before the incident. Investigators say the case is active but currently difficult to investigate because the couple is in Florida.

Criminal defense attorney Dale Cobb says an accusation of rape in a marriage adds complexity to a case. In South Carolina, it's called spousal sexual battery and falls under the statute of criminal sexual conduct.

"Unless there is an allegation of actual abuse or aggravation or violence, then there probably would not be a charge of criminal sexual conduct. There are other statutes that may apply."

There are three degrees of spousal sexual battery. First degree carries a maximum 30 year sentence, second degree 20 years and third degree ten years. Cobb says the degrees depend on whether force or a weapon was used, the size of the person and if violence was actually used or just threatened.

"If she refused him and he, despite that, he beat her, if he beat her with his fist, if he beat her with a club; if he used some sort of a weapon despite her protestations, then yes it's certainly possible that he could be convicted of criminal sexual conduct in the first or second degree."

He says cases involving married couples are more challenging to prosecute.

"It is much more difficult to prove. People are going to not want to invade the bedroom, so to speak. They're not going to want to invade the province of a husband and wife's marital relationship."

Cobb says the spouse may have to show there was a pattern of emotional and psychological abuse before the physical assault.

"She's probably going to have to prove, either by physical evidence or other manifestations, other witnesses, had she talked to other people about these problems, has she been to a physician, had she had to seek medical attention otherwise or is just her word."

If someone is convicted of spousal sexual battery, there is no parole and 85 percent of the sentence must be served. No charges have been filed against Wilkerson's husband.