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When is Rape Not Rape in California

Updated on January 8, 2013

There was a recent case where a man sneaked into an unmarried woman's home and pretended to be her boyfriend, when penetrated, she realized it was not. When the case went to trial, the defense cited a 1872 California law, still valid and on the books, but forgotten saying that rape only occurs to a married woman when a man impersonates being her husband. It does not happen when a woman is single. The man was convicted but released on appeal.


The old law has only been used a few times in the past by diligent defense attorney's. Each time, because the law is still valid, it stands. California is trying to repeal the old law but because of California's overcrowded prisons, the senate has not voted to repeal the old law, yet. When the law is finally repealed and taken off the books, all rape cases where the law was cited and the defendant got off, will face a new trial, in this case, it is not double jeopardy.


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    • perrya profile image

      perrya 5 years ago

      Thanks, I tend to agree with how the case ended. The condom was the thing. Weird.

    • brimancandy profile image

      Brian 5 years ago from Northern Michigan

      Not much to your hub. But, I will add something that happened here in Michigan. A woman was in her apartment minding her own business, when a young man just walks in, with a possible intent to rob the house, being that she left her door wide open, and the guy just walked in.

      So, she catches this guy trying to steal her TV, and since he has been caught, a struggle occurs, and according to the victim, the thief decides that he is going to rape her. Keep in mind that this was during a time when people were more terrified of getting AIDs then being robbed. So, she tells the thief to at least wear a condom, if he is going to rape her, and she supplies him with a condom. (weird) So, the man rapes her, slaps her up a bit, and then leaves without taking anything.

      She reports the rape, and the police find and arrest the individual, who actually lived in the same complex as she did. The lawyer for the thief says, the woman consented to having sex with the man the minute she gave him the condom, and he should do no time. He made up the story that she saw the thief outside, and purposely left her door open for him, hoping that he would come in and have sex with her. He was a good looking guy, and she wanted him.

      Even though the woman tried to say that was not the case, the lawyer for the thief made her out to be a total slut, and the jury found the rapist not guilty of rape. But did charge him with trespassing, and assault for her injuries, all the other charges were thrown out. Local women had a field day protesting that court.

      But, it certainly made many people make sure they always close and lock their doors when they are home alone. Oh another thing I forgot to mention. The woman was also married, and her husband was not home at the time of the assault. The Lawyer for the thief made it out, that she made up the rape, because she didn't want her husband to know that she had sex with another man. Crazy stuff.