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California rape conviction overturned due to technicality

California rape conviction overturned due to technicality

The California penal code allows for a conviction of rape if the attacker obtains consent for sex by duping his victim into thinking he is her husband. There isn't any mention in this law about a someone other than a husband, and because the victim thought it was her boyfriend, an appeals court overturned the conviction. Had she been married, and thought it was her husband, the conviction would have remained.

According to a report filed by ThinkProgress, under California law, rape occurs when a woman consents to sex,

"…under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.”

In California, sex with an unconscious woman is rape if the accused is aware that his victim is sleeping. The report states that the attacker admitted to sneaking in the woman's room and having sex with her while she slept. The victim states she consented because she thought it was her boyfriend, who was there when she went to sleep.

According to the report, the victim asked her boyfriend to stay overnight, and their conversation included having sex. The victim's boyfriend declined, stating he didn't have a condom and also cited pre-existing plans that would not allow for his remaining at the apartment until morning.

When the victim was woken by what she referred to as a sensation of having sex. She realized she was in a different position on the bed and that a man she thought was her boyfriend was in the process of intercourse with her. She stated she was a little confused, given the previous night's conversation about not having sex.

The report then states she eventually got a glimpse of her attacker's face via a little light coming through the slightly ajar bedroom door. At that point, she attempted to push her attacker away from her, and proceeded to scream and cry. Her attacker then immobilized her by putting pressure on her thighs, and then continued raping her. When he was done and gone, the victim locked her bedroom door and phoned her boyfriend.

The attacker was apprehended, and admitted to the police that he had entered the victim's bedroom while she was sleeping. He stated that he kissed her, and that the victim kissed him back. He then touched her vagina. Thinking she was still asleep, he proceeded to remove her pajama bottoms and proceeded with intercourse.

The attacker also admitted that the victim likely thought he was her boyfriend, and corroborated the victim's account that when she realized the attacker was not her boyfriend, she started screaming. In a later interview, he told the police that he knew the victim was asleep when he began intercourse.

On the confession of the attacker, police reports and testimony from the victim, the attacker was convicted of rape.

The problem arose when it came into question whether or not the conviction was for impersonating the victim's boyfriend or because he had sex with a woman who was unable to consent due to being asleep.

Under the latter, the conviction would have been held up under the law that provides for a conviction of rape when an attacker knows his victim is asleep.

Under the law that provides for a conviction of rape when an attacker impersonates a husband is invalid in this case, because of the technicality that in this case the attacker was impersonating a boyfriend, and not a husband, as the victim was not married.

The appeals court stated,

"…we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person.”

The accused attacker will, however, be retried and a conviction of rape can be administered if a jury determines that he had sex with the women while knowing she was asleep. A conviction is likely, as the attacker had admitted to doing so.

This case has brought much needed attention to the need to revamp the laws that pertain to rape and other sexual assaults to better protect victims and close loopholes that could potentially allow a rapist to be set free under a technicality.

For more information, commentary and relevant links, navigate to ThinkProgress.

About Al Stefanelli

Al is a retired author, writer and journalist. His books include "Free Thoughts - A Collection Of Essays By An American Atheist" and "A Voice Of Reason In An Unreasonable World - The Rise Of Atheism On Planet Earth." Al began writing in 1985, starting with the New York Times. In 1993 he joined a McClatchy newspaper, writing a weekly column for ten years. His writing continues to be widely distributed on the Internet and in print. He also produced and hosted a weekly syndicated radio broadcast from 1995 to 1998, and his work won a North Carolina Journalism award in 1998. Al is the former Georgia State Director for American Atheists, Inc., and served on the Board of Directors for "The Clergy Project." He is also a former Southern Baptist Pastor, having served two churches and as pulpit supply for three counties. Currently, he writes part time for The God Discussion, co-hosts the Internet radio programs, "The God Discussion Show" and "Reap Sow Radio." Al lives in the Atlanta suburb of Peachtree City, GA.
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