An appellate court ruling overturning a rape conviction because the victim wasn't married prompted anger Friday from women's groups and a state legislator who plans to introduce a bill that would close the legal loophole.At the risk of alienating more readers than I usually do, I am giving a rationale for that 1870s law.
In its ruling, California's 2nd District Court of Appeal reluctantly concluded that Julio Morales hadn't raped an 18-year-old because a state law crafted in the 1870s says a person who gets consent for sex by pretending to be someone else is only guilty of rape if the victim is married and the perpetrator is pretending to be the spouse. In this case, Morales apparently pretended to be the teen's boyfriend, and she didn't recognize otherwise until seeing him in the light.
The court urged the Legislature to update the law, and state Assemblyman Katcho Achadjian, R-San Luis Obispo, said Friday that he would introduce a bill.
It is very difficult to trick a chaste woman into sexual relations. If she only has sex if she is married, and only then with her husband, then about the only want to trick her is for a man to pretend be her husband. In that case, a serious crime has been committed.
If a loose woman has a habit of having sexual relations with strangers, then it is often extremely difficult for some later court to determine with she had properly consented. It is even more difficult if the she admits that she consented, but claimed that the man used some sort of trickery.
UCLA law professor Eugene Volokh explains some of the legal and practical difficulties:
I’m not a fan of allowing general “rape by fraud” prosecutions (see here for some interesting examples from Israel), largely because it would open the door to criminalizing a wide range of lies, whether about fidelity, past sexual partners, wealth, love, and so on, used to get sex. I explain some of my thinking on that here, though I acknowledge that the problem is not an easy one: ...At some point you have to realize that the court cannot correct every injustice. Changing this law will open a lot of men up to false rape accusations.
The above case is contrived to make a point, but the man is not going free. He is going to be tried again, and he will probably be convicted again.
Marriage used to have a privileged status under the law. The above 1870s law was just a small and trivial example. Feminists, liberals, and other anti-family movements have systematically abolished most such laws, and now they will abolish another. The net result of all these changes is that traditional legal marriage and family have been abolished.
When the legislature gets a bill to repeal this law, I am sure it will pass. People will say: How could this bill hurt anyone family? If it helps send a rapist to prison, that is a good thing.
No, it is not a good thing. This man is going to prison anyway. They probably will not even consider all the problems that Volokh raises. And they sure won't consider the damage to marriage.
Nobody is going to tell that 18yo girl that if she wants to have an exclusive sexual relationship with a guy, then she needs a ring on her finger. Those days are gone. So now most births to young women are out of wedlock, and millions of kids are growing up without dads.
It was perfectly reasonable for the govt to issue marriage certificates as the way for girls to register the exclusivity of their sexual relations. Otherwise they are on their own to positively identify the men they choose to sleep with.
Some readers wonder why I post on these issues that do not directly involve the family court. The answer is that I have become convinced that the problems of the family court run much deeper than incompetent judges and evaluators. There are laws, ideologies, and social forces that help create some of the problems that the family courts handle so poorly.