Friday, January 04, 2013 7:59 pm
Calif. lawmaker to bring back rape loophole bill
By GREG RISLINGAssociated Press
In its ruling, California's 2nd District Court of Appeal reluctantly concluded that Julio Morales hadn't raped an 18-year-old because a state law crafted in the 1870s says a person who gets consent for sex by pretending to be someone else is only guilty of rape if the victim is married and the perpetrator is pretending to be the spouse. In this case, Morales apparently pretended to be the teen's boyfriend, and she didn't recognize otherwise until seeing him in the light.
The court urged the Legislature to update the law, and state Assemblyman Katcho Achadjian, R-San Luis Obispo, said Friday that he would introduce a bill.
"Californians are justifiably outraged by this court ruling, and it is important that the Legislature join together to close whatever loopholes may exist in the law and uphold justice for rape victims," Achadjian said.
Achadjian had a 2011 bill that would have expanded the rape law to include perpetrators who pose as live-in boyfriends or girlfriends and dupe their victims into sex. The bill was approved by the Assembly but stalled in the Senate Public Safety Committee because of its policy to hold any legislation that could add to the state's prison overcrowding problem.
Achadjian said that should no longer be a problem after voters in November approved Proposition 36, revising California's three-strikes law.
The earlier bill was prompted by a Santa Barbara County case in which a man broke into a woman's home while she slept. The woman assumed the man was her live-in boyfriend and consented to sex. When she realized it wasn't her boyfriend, she resisted and the man fled.
Prosecutors couldn't pursue a felony rape charge because the woman wasn't married, she consented, and the man hadn't pretended to be her husband.
A similar law in Idaho prevented an unmarried woman from pressing rape charges three years ago after being tricked into sex with a stranger by her then-boyfriend. Idaho's law was amended to cover all women in 2011.
"It is imperative that we now change the law to prevent a grave injustice for future rape victims. All of us in public safety deeply appreciate the extraordinary efforts made on the part of Assemblyman Achadjian to seek this minor change in the law that will have a tremendous effect on future victims," Santa Barbara County District Attorney Joyce Dudley said.
The appellate court noted the law has been applied inconsistently over the years in California, a state that has been aggressive in broadening its rape laws. California has removed a requirement that a rape requires force to have been used, and it has classified various aggravations of sexual assault as rape.
Patty Bellasalma, president of the California National Organization for Women, said it's incumbent upon legislators to ensure laws mesh with modern-day lifestyles.
"If unmarried women aren't included, that means the intent of the law is not about protecting women, it's about protecting something else," she said.
In the Morales case, the victim said her boyfriend was in the room when she fell asleep following a night of partying with Morales and others. They opted not to have sex that night because he didn't have a condom. After the boyfriend left, Morales entered her room and they began having sex.
It wasn't until a ray of light from outside the room illuminated Morales' face that the woman realized it wasn't her boyfriend, prosecutors said.
Defense attorneys argued Morales believed the sex was consensual because the victim responded to his kisses and caresses.
The appellate ruling said Morales gave conflicting testimony about whether he tried to identify himself. The court, which remanded the case back for retrial, noted prosecutors had argued two theories and it wasn't clear which the jury used for the conviction that led to a three-year prison sentence: that Morales "tricked, lied to, or concealed information" from the victim, or because he had sex with the woman while she slept. The latter is already defined as rape under state law.
California Attorney General Kamala Harris, whose prosecutors handled the appellate case, promised to work with legislators to amend the law.
"The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape," Harris said in a statement. "This law is arcane and I will work with the Legislature to fix it."
Defense attorney Edward Schulman declined comment, only to say that "the decision speaks for itself."
Associated Press writer Juliet Williams in Sacramento contributed to this report.