Weishaupt v. Commonwealth

This appeal raises an issue of first impression in the Commonwealth: whether a husband can be guilty of raping his wife, in violation of Code § 18.2-61, where, at the time of the alleged offense, the parties were living separate and apart.

Weishaupt was indicted for rape. He moved to dismiss the indictment on the ground that pursuant to common law principles, a husband cannot be convicted of raping his wife. The trial court rejected Weishaupt’s argument and denied the motion. The case was tried to a jury which found Weishaupt guilty of attempted rape. Judgment was entered on the verdict and…