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Rape should not be determined by a wedding ring

January 03, 2013|By Joseph Serna

The scenario starts out horrifyingly enough.

A man enters a darkened bedroom of a woman after seeing her boyfriend leave late at night. He pretends to be her boyfriend. Before she’s aware of what’s happening, he’s having sex with her.

Was she raped? The equally horrifying answer: no.

In a conviction reversal that might inspire some California lawmaker to take up this mantle and change the state’s penal code, a Los Angeles man’s rape conviction was overturned this week on that simple fact; the man pretended to be the woman’s boyfriend, not her husband. If she had been married, his conviction would have been upheld.

The decision exposes a flaw in California’s rape laws that somehow has gone unaddressed. According to the court’s opinion, the 18-year-old woman fell asleep with her boyfriend in her bedroom, and after she fell asleep he went home because he had things to do the next morning.

The attacker was in the living room – he was friends with the victim’s brother – and saw the boyfriend leave. Minutes later, he went into the room and reportedly tried to wake her up. But instead of leaving when she didn’t wake, he stayed.

Through two trials – his first ended in a hung jury – his testimony differed. But in both cases, he said he began kissing and touching the woman and figured that she assumed he was her boyfriend. It wasn’t until he started having sex with her and she saw his face in a sliver of light shining through a crack in her bedroom door that she realized what was happening and pushed him off, the court record said.

He was arrested and convicted of rape. But as the panel of judges on the state Court of Appeal in Los Angeles concluded Wednesday, the prosecution erred.

The prosecution argued both that the man raped her because she was unconscious and didn’t know what was going on (illegal) and that he raped her by misrepresenting who he was (not illegal because she’s not married). Because there’s no way of knowing which of those two assumptions the jury convicted him on, the man’s case was overturned.

Even though the attacker is now free – he was only sentenced to three years in prison – the district attorney’s office should retry him. It’s worth the taxpayer dollars to get this right and keep the conviction on his record if he’s found guilty.

In the meantime, lawmakers should be outraged by this decision, not because of the judges who were following the letter of the law as their assigned to do, but for the loophole it exposed. A wedding ring should not be the determining factor on who will and will not be the victim of a sexual predator.

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