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Legislation closing rape 'loophole' clears first hurdle

4:19 PM, Feb 26, 2013   |    comments
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Legislation to make a small but, advocates say, important change in California's rape laws appears on the fast track at the Capitol.

"The Legislature should be ashamed if it can't close this very archaic loophole," said state Sen. Noreen Evans, D-Santa Rosa, after her SB 59 was approved Tuesday morning by the Senate Public Safety Committee.  It now heads to the Senate's appropriations panel.

Evans' proposal is the more narrow of two bills pending in the Legislature, both of which have gained political momentum in the wake of a Southern California rape conviction being overturned by an appeals court last month.

In the case of People v. Morales, defendant Julio Morales was convicted of raping an 18-year old woman who thought she was sleeping with her boyfriend when she awoke to a sexual encounter. The three judge panel ruled (PDF) that Morales was wrongly convicted because the existing state law -- dating back to 1872 -- makes rape by impersonation contingent on the idea of pretending to be the victim's "spouse."

"What this bill does is it substitutes and defines the new term as 'sexual partner,' in place of the outdated word 'spouse'," said Evans.

A similar bill, AB 65, has been introduced in the Assembly by Assemblyman Katcho Achadjian, R-San Luis Obispo.  And the only real difference in the bills is how broadly -- or narrowly -- to craft the language about an attacker pretending to be someone else. The Senate bill limits the crime to someone pretending to be the victim's sexual partner; the Assembly version makes rape linked to a victim believing the sexual act is with anyone "other than the perpetrator."

Achadjian was the author of an earlier attempt that was blocked by a standing practice to limit laws which might add to California's prison overcrowding problems.  But Tuesday's hearing made clear that those limits, which have been in place at the Capitol since 2007, are now being loosened.

"I am looking to have some more flexibility this year," said state Sen. Loni Hancock, D-Berkeley, chair of the Senate's public safety committee.

Both bills are crafted as urgency statutes, which means the law would change as soon as it's signed by Gov. Jerry Brown.  That fast-track requires a supermajority vote of each house, a pretty good bet in this case with the push to close the so-called legal loophole already attracting bipartisan support.


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