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Proof That Arcane Laws Can Cause Serious Modern Day Problems

Arcane New Jersey laws that are still on the books often make for fun trivia or fodder for legal blogs. However, a recent California case reminds us that some of these laws can have real, and often unintended, consequences.

Julio Morales was charged with rape after he snuck into the bedroom of an acquaintance and pretended to be her boyfriend. However, a California appeals court was forced to overturn the trial court’s conviction and remand the case for retrial, based in large part on California’s outdated rape law.

The law, which dates back to 1872, states: “Any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability (at least as a sex offender under tit. IX of the Pen. Code), unless he (or she) masquerades as the victim’s spouse.” In plain English, the law offers protection for married persons tricked into consenting to sex, but not those who are single.

“A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape?” Judge Thomas L. Willhite Jr. questioned in the California Court of Appeals’ opinion. “Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.”

The court had no choice but to apply the law. Moreover, because it could not be sure whether the jury relied on this flawed theory or a second valid theory offered by the prosecution, the court ordered the case be retried.

Following the public outrage that followed the decision, efforts are currently underway to amend the law. “This law is arcane and I will work with the Legislature to fix it,” California Attorney General Kamala D. Harris said in a press statement. “The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape.”

Unfortunately, these arcane laws are often not addressed until after they result in an unjust result.

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