Archaic Rape Law in California Doesn’t Protect Unmarried Women

A 1872 California law has overturned the rape conviction of a man who pretended to be her boyfriend after she had fallen asleep from a night of heavy drinking.

The woman’s boyfriend had been with the woman but left after she feel asleep. An intruder broke into her home. In the dark and with her grogginess, the man initiated sex. The woman discovered the man was not her boyfriend, and he was initially convicted of rape. An appeals court overruled the conviction:

“Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes,” Judge Thomas L. Willhite Jr. wrote in the court’s decision.

That the rape conviction would stand if the woman was married has generated the uproar and rightly so. It isn’t just California with laws like this. In 2010, a similar situation happened in Idaho. The case might generate enough interest to wipe away the law and the vestiges of the nineteenth-century mores that created it. The video has more details.

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