Friday, January 04, 2013

It's Only Rape If She's Married

If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. ~ Charles Dickens, Oliver Twist

A California appellate court overturned the conviction of a man who had sex with a sleeping woman, stating it was not rape because the woman was not married. Specifically, the rapist pretended to be the woman's lover and according to a Victorian interpretation of a Victorian law, pretending to be anything other than a women's husband makes rape legal.

I read the legal opinion, which is written with all the scholarship of a third-grade book report. I even went back to the law (California Penal Code 261(a) (4 and 5)) and I just don't see it. The law makes it specifically illegal to pretend to be a spouse but that doesn't make it legal to pretend to be someone else. Rape by fraud is still rape.

I'd like to blame this insane ruling on the fact that the three judges were all appointed by Republicans but law professors across the state are declaring the ruling legally sound. These same professors also are certain the rapist will be convicted in a retrial. Like that's supposed to make the victim feel better.

I'm not a lawyer, a fact I'm proud of at times like this, but if the law really says this then the law is a big fucking ass.

1 comment:

Katy Anders said...

I'll have a look at the decision.

It seems like it should not matter WHO someone is pretending to be - if a woman has not consented to have sex with the person having sex with her, then the rape tag should apply.

If it doesn't, then the law needs to be rewritten.