[karajorma]

http://www.bbc.co.uk/news/world-us-canada-20918642

California lawmakers have vowed to close a loophole that allowed a man's rape conviction to be overturned because his victim was not married.

An arcane state law says a person who gets consent for sex by pretending to be someone else is guilty of rape only if posing as the victim's spouse.

Julio Morales was initially convicted of rape after pretending to be the unmarried victim's boyfriend.

A similar loophole has already been closed in the state of Idaho.

In the California case from four years ago, Morales went into a room and had sex with an 18-year-old woman after her boyfriend, whom she had fallen asleep beside, had left.
Tricked into sex

She awoke to the sensation of having sex with Morales, a friend of her brother.

She only realised the man in her bed was not her partner when a ray of light from outside the room flashed across his face.

Defence lawyers argued that Morales believed the sex was consensual because the victim had responded to his kisses and caresses. But he was sentenced to three years in prison.

In its ruling on Wednesday, the California appeal court reluctantly decided that Morales was not guilty of rape, because he was pretending to be the woman's boyfriend and not her husband.

A law dating back to 1872 makes it a crime for a man to have sex with a woman while posing as her husband, but not as a boyfriend.

Judge Thomas Willhite wrote in the court's decision: "Has the man committed rape? 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."

A similar law in the state of Idaho prevented an unmarried woman from pressing rape charges three years ago after she was tricked into sex with a stranger by her then-boyfriend.

Idaho's law was amended to cover all women in 2011.

California Attorney General Kamala Harris has promised to work with politicians to amend that state's law.

State assemblyman Katcho Achadjian said on Friday that he would introduce a bill.

"Californians are justifiably outraged by this court ruling, and it is important that the legislature join together to close whatever loopholes may exist in the law and uphold justice for rape victims," he said.

Assemblywoman Bonnie Lowenthal said she would back him.

"Allowing this [law] to stand in the 21st Century would be like applying horse and buggy standards to our freeways," she said in a statement, reported by the Los Angeles Times.

[watsisname]

What in the literal ****?

I can't understand why there's any difficulty or debate about updating some ancient artifact of a law so that marital status doesn't matter.  Or perhaps "if it's not consensual, it's rape" isn't good enough in and of itself.

[Beskargam]

seems like something that just got overlooked until someone clever found that clause when doing defense

[Flipside]

Says a great deal about lawyers that are prepared to pull these kinds of technicalities to free a man who has commited rape.

[BlueFlames]

Says a great deal about lawyers that are prepared to pull these kinds of technicalities to free a man who has commited rape.

Maybe the blame belongs with those who were doing their jobs poorly, rather than the one who was doing his/her job well.  I'd fault the legislators who put the provision in place that it's only rape if you're imitating someone's spouse.  I'd fault the subsequent legislators who did nothing to repeal the provision for so long that it faded from their and the public consciousness.  I'd fault the public for letting the issue drop (or never bringing it up).

In our justice system, you have the right to a defense attorney.  Someone had to defend this person in court to the best of his/her ability.  That person was either going to be a ****ty lawyer, who couldn't find this provision on behalf of the defendant, a corrupt lawyer, who would not use this provision on behalf of the defendant, or a capable lawyer, who would get his client acquitted, using this ghastly bit of legislation.

[stinkyFeet]

So they're finally prosecuting that guy from Revenge of the Nerds?

[Flipside]

Problem is, the whole legal system in several countries has this weakness, hidden parts of laws that get forgotten or buried and nothing is ever done about them. To me 'defending to the best of your ability' means protecting a man you believe to be innocent, not 'playing the rules' to free a man who actually committed the crime using a technicality.

Certainly, the legislative mess provided the option to take this route to the lawyer, but getting a man who you believe to be guilty off the hook should be no less of a moral burden than putting a man you believe to be innocent into jail.

I'm not saying this makes the US Legal system unique, this kind of thing happens everywhere, it's the whole idea that lawyers are supposed to be 'amoral' about the thing that concerns me. Yes, I believe in innocent until proven Guilty, I also believe in the Right to a fair hearing, but I can't help feeling that 'playing the loophole' is spitting in the eye of the whole reason laws and the legal system was created in the first place, which was to protect other people.

[BlueFlames]

If you are ever falsely accused, do you want to be represented by someone who may become convinced of the case against you, who will then feel morally obliged to let you get convicted?  Just put yourself in that position, where your one and only advocate in the courtroom has turned against you, and suddenly the prospect of lawyers being amoral actors regains all of its appeal.

The moral burden for a clearly guilty person exploiting a legal loophole is the author of the loophole, the legislature that passes it, and the public that doesn't make an issue of it.  You might shift some of the public's burden onto an education system that does not encourage investigation of the local legal code, but defense (and prosecuting, for that matter) attorneys are and must remain free of moral burden or the justice system becomes dysfunctional, even with a legal code free of loopholes to be exploited.

[Flipside]

If I was falsely accused then that would be my defense, that I did not commit the crime I was accused of, not that I did, but some wording from 100 years ago means I cannot be prosecuted for it. That is the difference. This man is not denying he raped the girl, his lawyer is claiming that he cannot face punishment for that crime because of the wording of some old legislature.

A Lawyers' first reaction upon hearing his client basically admit that he committed the crime he was accused of should be to get the best deal for his client within the Criminal Justice system, short term, good prison etc, that to my mind is a lawyer fulfilling their responsibilities to Justice, not go diving into legal documents to find a 'get out' clause.

Yes, legislature can be held responsible for not changing the law earlier, but the fact that this clause has not been used before suggests the lawyer dug really deep to find a reason to not prosecute his client in the first place by playing on a mistake that was never corrected. I cannot accept that is really 'Justice' for either side of the court, the accused has not been found Innocent OR Guilty of the crime, and the victim is left with absolutely nothing.

[MP-Ryan]

And THIS, my friends, is why jurisdictions enforcing criminal laws are supposed to be reviewing them every few years to make sure stupid legal loopholes are eliminated regularly.  Justice Canada actually has a review of the entire Criminal Code - all 1100+ pages of it - every 5 years.

The fact that the sexual assault laws in California don't make this ancient provision moot in the first place is the real problem.

BlueFlames is correct on the lawer's job though.  Any lawyers job is not to "get the client off," it's to provide full answer and defence to a charge.  That includes bringing the relevant laws to the attention of the judge and prosecutor if they are not aware of them.

Now, if I were the prosecutor I would have countered the appeal with a suit to have the entire provision deemed un-Constitutional, which would have left jackass with nothing but the standard definition of rape to try to counter.

[NGTM-1R]

A Lawyers' first reaction upon hearing his client basically admit that he committed the crime he was accused of should be to get the best deal for his client within the Criminal Justice system, short term, good prison etc, that to my mind is a lawyer fulfilling their responsibilities to Justice, not go diving into legal documents to find a 'get out' clause.

This goes against the entire reason we have an adversarial system of justice. It is the task of the lawyer to represent their client as zealously and thoroughly as possible; for we have chosen to believe that it is better that the guilty go free than the innocent be punished. If you don't like what the guy's lawyer did here, you've forgotten why we have someone to speak for the defense in the first place.

Honestly, the man should be applauded for doing his job with thoroughness rather than phoning in a plea bargain and taking his fee.

(I'd also note that what this thread is eagerly not discussing is that the Court cited both this technicality and the fact the prosecution's arguments appeared to encompass two separate theories of the case, which is major no-no.)

[Mongoose]

****...you see all these books and websites that list goofy archaic laws that are still on the books, but I've never heard of one being applied to such horrible effect as this.

[Dragon]

There should be a law against pulling out ancient laws like that. An expiration date for laws and precedents, or something.

[Lorric]

****...you see all these books and websites that list goofy archaic laws that are still on the books, but I've never heard of one being applied to such horrible effect as this.

I have a book somewhere not specifically on the subject, but that has a section in it which details some of the absurd laws that are still lying around on the British books. Most are just silly things that won't come up in this day and age, but I'm sure there were at least a couple with the potential to be used for sinister reasons. The only question is could it really happen?

[BloodEagle]

There should be a law against pulling out ancient laws like that. An expiration date for laws and precedents, or something.

Say... 226 years? 

[karajorma]

One thing worth remembering. If you get a client off on the grounds that it wasn't rape because the woman wasn't married, your client is still a man who sexually assaults unmarried women.

I'm pretty surprised they didn't go after him for that even if they let the rape charge slide.

[NGTM-1R]

Part of the stupidity of it all was that if they'd just gone with the rape charge based on the fact she was sleeping at first, we wouldn't be here. But the prosecution had to drop the deception bit as well, so now we have two theories of the case being argued (rape by deception and rape by inability to consent), one of which he can't be convicted under, so without the ability to sort which the jury convicted him for it's all null and void.

[MP-Ryan]

Part of the stupidity of it all was that if they'd just gone with the rape charge based on the fact she was sleeping at first, we wouldn't be here. But the prosecution had to drop the deception bit as well, so now we have two theories of the case being argued (rape by deception and rape by inability to consent), one of which he can't be convicted under, so without the ability to sort which the jury convicted him for it's all null and void.

This is why I was saying that the better argument by the prosecution to deal with the appeal would have been an attempt to get the deception law tossed out entirely and simply go with rape due to inability to consent.

Regardless, I don't blame the defense lawyer.  The legislature and prosecution are entirely to blame for this legal ****-up.

[BlueFlames]

If I was falsely accused then that would be my defense...

You missed the point of the analogy, which is a defense of why lawyers must be amoral actors.  If lawyers are moral actors, then if your defense attorney is convinced by the prosecution that you were not falsely accused, but actually guilty, then he is morally obligated to offer no defense.  In the best case, he recuses himself, leaving you without an advocate, but in the worst, he rests, without presenting any defense at all, leaving you at the mercy of a judge or jury who has/have only heard one side of the case.  If your defense attorney is an amoral actor, though, then he is obligated to present the most effective defense that he can, whether he's convinced that you've committed a crime or not.  Maybe that is a presentation of the truth of the case, that you were falsely accused, or maybe that's digging up some obscure legal verbiage that indicates that the action you were accused of was not a crime at all.

This does lead to scenarios where defense attorneys have to put up a vigorous defense of someone who is clearly guilty, occasionally ensuring that a monster will be acquitted of his crimes and turned loose on society again.  Lawyers don't do this because they are moustache-twirling villians who want society to burn as a sacrifice to their salary.  They vigorously defend the guilty and innocent alike, because it is an essential function of our justice system that minimizes the number of innocent people victimized by false accusations or misleading evidence.

It's not a perfect system, but it's vastly preferable to one where lawyers, as moral actors, can and must opt out of your defense, when they become convinced (rightly or wrongly) of your guilt.

[MP-Ryan]

I should also point out that in some Common Law jurisdictions, where a lawyer becomes convinced of his client's guilt and is therefore unable to provide full answer and defence and demonstrate reasonable doubt, s/he is supposed to cease representing the client.

Most defense lawyers I've spoken to tend to have an inkling about their client's actual guilt, but avoid ever asking them directly, instead operating on the premise that everyone - no matter how guilty they may appear - deserves a full defense.

While the American, Canadian, and British justice systems all differ slightly (in Canada and Britain, judges are the trier of fact and the purpose of the trial is to find truth - the result being that some types of evidence that may have been collected in inadmissible fashion may still be entered as exhibits, unlike the US), this thread is common to all of them.