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When is Rape Not Rape in California
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 When the law is finally repealed and taken off the books, all rape cases where the law was cited and the defendant got off, will face a new trial, in this case, it is not double jeopardy.