Court: It's not rape if you're pretending to be your victim's boyfriend

A state appeals court has reluctantly overturned the rape conviction of a Southern California man who admitted to pretending to be his victim's boyfriend. The court said that the law only would have considered the woman a victim under these circumstances only if she had been married.

WHAT THE FUCK, 2ND CIRCUIT COURT???

I ... what?

THE FUCK YOU SAY!?

Fucking Second Circuit Court, you fucking group of fucking fuckers! FUCK!

SIGH

I think the part that is most WTF to me is the "unless they're pretending to be your SPOUSE" thing. Because I have no fucking idea what the logic is there except maybe "well they'll have sex OUTSIDE OF MARRIAGE, clearly they'll sleep with anyone."

Meanwhile, in Nova Scotia,

Obviously, 18-year old woman who is not yet married is but a slut seeking carnal, unrestricted pleasures and she just got some.

Jesus, what the hell. How is non-consensual intercourse with an unconscious person not rape regardless of how you're dressed or who you pretend to be? It seems like that should be a pretty simple concept.

And poking holes in the condoms so she won't break up with you, that's manipulative on levels I've never even thought about. Christ.

Hey! The ending of Revenge of the Nerds is no longer creepy AND illegal!

But she ended up liking it, remember? That means it's not even creepy.

Nnnno, no still creepy

The problem, apparently, is that no, it is not illegal to pretend to be someone's boyfriend to have sex with them in California, they're not sure if the jury convicted him in part because they thought it was (because they were given wrong instructions or something). If they were 100% sure he was convicted JUST because of the unconscious part, it sounds like the verdict would've stayed?

LAW YOU SO WACKY

How high up is the Second Circuit Court?

Cal. Penal Code 261(a)(5) specifically says that inducing sex by impersonation is only a crime if you are impersonating the victim's spouse. "(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief." Not the court's fault, really, and they did add the following footnote:

3. In doing so [reversing the conviction], we urge the Legislature to reexamine section 261, subdivisions (a)(4) and (a)(5), and correct the incongruity that exists when a man may commit rape by having intercourse with a woman when impersonating a husband, but not when impersonating a boyfriend.

I'm guessing this will be fixed in the current year, it's kind of a no-brainer.

Also they sent it back for re-trial, they didn't set the guy free.

There are three tiers in California: trial court (one for each county), Court of Appeals (6 districts throughout the state), and Cal. Supreme Court. The Second District referenced here is the Court of Appeals (intermediate) level.

Circuit is the federal term for the equivalent intermediate court. The CA intermediate court here is called the Court of Appeal (2d Dist).

This reminds me of the case a few months ago where a handful of media sites reported that the Connecticut State Supreme Court let a rapist go free because there was no evidence that the victim fought back. Cue everyone yelling about the Connecticut State Supreme Court. Understandably, a rapist walking free on a technicality is.. upsetting, to say the least.

A few lawyers dug into it a bit and pointed out that the prosecutor fucked up and charged the wrong statute.

Reading lightly into the judgment here (IANAL!), this also looks like the prosecutor shares some of the blame with the outdated legislation. At least the guy had already served his time in prison and now has to face a new trial?

The specific charge requires that the victim be unconscious. She wasn't unconscious. Or she was, depending on who you ask and what time you mean. He could not be convicted under the theory that she was without a difficult fight. That's why there was a hung jury at his first trial. The prosecutors thought he can still be convicted under the theory that he misrepresented himself, and the Court told the jury that they could convict under either theory when they had to unanimously agree only on the one. He's not walking on a technicality. He had his conviction overturned because the State cheated to win and invoked a statute that does not apply and told the jury that they could convict a man for doing something that is not illegal. The state can retry him for a third time, if they like. Except he can't be tried on the theory that he unrepresented himself to an unmarried person, the specific statute that covers the other theory, that he misrepresented himself, only covers a small set of people, and the court is not free to expand the definitions of criminal law, as it would violate the principal of fair warning as set forth in Van Halen's 1981 double platinum effort.

TLDR;

They charged the wrong offense and could have had a conviction if they had played it straight.

I think it's a bit too trite to say that the State "cheated to win." The statute they invoked states that rape includes intercourse with a person who the defendant knows to be "unconcious of the nature of the act." The statute defines that phrase to mean both physical unconciousness (e.g. sleeping) as well as situations in which the victim is "not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact." The state argued that the defendant was guilty of rape under both prongs: i.e. the defendant was guilty because the woman was asleep at the time, and moreover, even if the jury didn't believe that the she was asleep, he was still guilty because he fraudulently impersonated her boyfriend. The appellate court didn't find any fault with the first part of the argument, but rather the second. Their reasoning, which I find neither outrageous nor unimpeachable, was that a separate section of the statute already expressly provides that rape includes situations involving spousal impersonation. Therefore, the "fraud in fact" language in the provision that the state relied on can't be read as including instances of impersonation because doing so would render the specific spousal impersonation section superfluous.

The relevant statute, so people don't have to look for it.

"Incapable of resisting."

I agree with Jestintime, but I do think there is at least one glaring problem with the ruling. The court's decision turns largely on the finding that adopting the prosecution's theory would render a separate provision superfluous. I reproduce the provisions below:

In my view, interpreting s. 261(a)(4)(C) to include an impersonation of a boyfriend does not render 261(a)(5) superfluous for at least two reasons.

First, they have different elements. Subsection (4)(C) requires the prosecution to prove that the complainant was unconscious of an essential characteristic of the act, that the accused knows the complainant is unconscious of the essential characteristic of the act, and that the complainant's unconsciousness is due to the accused's fraud. Subsection 261(a)(5) requires that the prosecution prove that the complainant believed that the accused was his or her spouse, that this belief was induced by artifice, pretense or concealment, and that the accused intended to induce this belief. So while the two subsections may criminalize the same basic act, they offer different routes to liability.

Second, 261(a)(5) catches some kinds of circumstances that 261(a)(4)(C) does not. Subsection (4)(C) goes only to the nature of the act, while (5) goes to belief in the nature of the relationship. This criminalizes cases where the defendant is pretending to be someone he or she is not, and also cases where the defendant pretends to marry the complainant but in fact does not (for example, due to lack of capacity from a prior marriage, ie. bigamy). On a plain reading of (5), if an accused person tricks a complainant into believe that the accused person and the accused are married, but they are not in fact married, and due to this fraudulent belief in marriage the complainant submits to sexual contact, (5) would make that a rape. This may seem to be a bit of a far-fetched scenario, but there are documented cases of this happening: R. v. Papadimitropoulos is a well-known example, which is not cited by the court here.

These points are debatable, but if the court is going to base its decision on superfluousness, it should explain that point in greater detail.

Well then write em a fuckin' letter.

How many of the 2nd Court of Appeals have penises?

JUST SAYIN

Count them.

Fucking figures.

Heh, I count 13 out of 32 and thought "gee that's pretty good!"

The justices who wrote/signed this opinion:

Presiding Justice Norman L. Epstein
Associate Justice Thomas L. Willhite, Jr.
Associate Justice Nora M. Manella

For a profession that is still heavily male-dominated, that is really good. Compare the federal bench.

wait, help me out here, I'm not good with legalese. does this:

mean that spouses can't commit rape in the eyes of california law? Please tell me I'm being retarded, because if not WHAT THE FUCK CALIFORNIA

Funny story about that. Until the 1980s wives couldn't be raped in almost any state. Husbands, of course, either, but no one really even thought about that issue. I interned in college with a group that was working to pass laws making "marital" rape a crime.

California does in fact have such a law -- Penal Code 262 -- but PC 261 is the older, non-spousal law.

Just as a follow up: A bill has been submitted to fix this and as a bonus clarify that it extends to same-sex situations.

http://latimesblogs.latimes.com/cal...ll-to-close-legal-loophole-in-rape-cases.html