## Facts

- Ronald E. Weishaupt was indicted under Va. Code § 18.2-61 for raping his wife, Janet Weishaupt.
- The couple married in July 1980 and had one child.
- In November 1981, Janet moved out with the child; for about 11 months the spouses lived separate and apart, had no sexual relations, and had limited contact about the child.
- Janet consulted counsel about divorce during the separation.
- On October 16–17, 1982, the parties encountered each other at a bowling alley; afterward, Ronald sought Janet out, believing she might be with another man.
- Ronald found Janet at an apartment with a male friend, forced entry, assaulted the male friend, and then attacked Janet.
- A jury found Ronald guilty of attempted rape; he received a two-year sentence (execution suspended pending appeal).
- On appeal, Ronald challenged only the denial of his pretrial motion to dismiss, arguing a common-law marital rape exemption barred prosecution.

## Issues

1. Whether, under Va. Code § 18.2-61, a husband may be prosecuted for raping (or attempting to rape) his wife when the spouses were living separate and apart at the time of the alleged offense, notwithstanding the common-law marital rape exemption.

## Decision

- The Supreme Court of Virginia affirmed the trial court’s denial of the motion to dismiss and affirmed the attempted-rape conviction.
- The court held that a husband living separate and apart from his wife at the time of the alleged offense may be prosecuted and convicted for rape or attempted rape under Va. Code § 18.2-61.
- The court rejected the claim that a marital exemption barred prosecution in these circumstances.

## Legal Principles

- Va. Code § 18.2-61’s broad prohibition on forced sexual intercourse applies without an implied spousal exception where the spouses are living separate and apart.
- A common-law marital rape exemption, grounded in historic doctrines such as coverture and implied marital consent, has diminished force where modern law recognizes spouses as separate legal persons.
- Even if any limited marital exemption could survive, it does not extend to separated spouses with no ongoing sexual relationship; marital status alone does not supply consent.
- Courts should not infer an unwritten spousal exception from a generally worded criminal statute when the statute contains no such exception and the traditional rationale for the exception no longer fits contemporary law.

## Conclusion

Virginia permitted prosecution of a husband for attempted rape of his wife when the couple had been living separate and apart, holding that Va. Code § 18.2-61 contains no marital bar in that setting and that implied marital consent does not survive separation.


Weishaupt v. Commonwealth, 315 S.E.2d 847 (Va. 1984)