Dating back to Lewis v. State (1857) in which, Lewis, a slave man, had sex with a white woman under the pretenses of acting as her husband, the court ruled that force was required to constitute rape. Lewis was not convicted. Again in Boyett v. State (1964) the defendant posed as a doctor and had sexual intercourse with a victim in a hospital room. His legal defense was that the victim had consented to the ‘examination’, however, defendant was found guilty and fined $250, and six months hard labor for the county. In an Arizona case, State v. Navarro (1961) a defendant’s conviction was affirmed after he had acted as the victim’s spouse in order to have sex with her. While many states have constructed a legal theory to convict perpetrators who falsely impersonate another in order to have sexual relations with someone, they rely on the “spouse” clause. This has created a legal loophole for rapists who impersonate boyfriends, fiancés etc.
Authored by Representatives Perez and Achadjian, A.B. No. 65 is an act to amend Section 261 of the Penal Code in order to close the longstanding legal loophole for rapists. Read for the first time on January 7th, the bill now sits in committee waiting to be heard of February 7th. In effect the bill would amend the code to read that any perpetrator who falsely convinces the victim that they are their spouse, cohabitant, fiance or fiancee or someone with whom the victim has a dating relationship. On January 8th Senator Evans introduced SB59, a similar bill that would also amend Penal Code 261 Section 1 (5) to read: “Where a person submits under the belief that the person committing the act is the victim’s spouse sexually intimate partner, and this belief is introduced by any artifice, pretense, or concealment practiced by the accused, with intent to introduce the belief.”
As our requirements of what constitutes rape evolve, legislation must follow. Too many rapists have used this loophole to avoid sentencing. It is time that justice is served for all rape victims, including unmarried women! California just took a substantial step in this direction.