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Rape case story prompts promises of legislative action

January 4, 2013 12:00:00 AM PST
Eyewitness News first reported on it Thursday night, and now there is a widespread call for action to plug a loophole in California's rape law.

Thursday night, Eyewitness News was the only local station to bring this story to light, and the response from the public was overwhelming. Hundreds and hundreds of viewers wrote on the ABC7 Facebook page saying it's time to change this obscure law immediately.

Friday, several prominent California lawmakers, including the chair of the California Legislature's Women's Caucus, weighed in on the issue.

"I was horrified, it's so hard to believe," said state Assemblywoman Bonnie Lowenthal (D-Long Beach).

Lowenthal reacted like so many people did to the scenario, re-created on-air Thursday night.

A man enters the bedroom of an unmarried woman. After seeing her boyfriend leave late at night, he has sex with the women while pretending to be her boyfriend.

Citing a law from 1872, appellate judges ruled "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."

"That would be like applying the horse and buggy laws to freeways today -- you can't do that," said Lowenthal. "I expect to change the law as soon as I can."

California Attorney General Kamala Harris agrees, saying in a statement: "This law is arcane and I will work with the legislature to fix it."

State Senator Noreen Evans (D-Santa Rosa) says she'll introduce legislation to close this loophole.

State Assemblyman Jimmy Gomez (D-East Los Angeles) wants to do the same, as does republican state Assemblyman Katcho Achadjian (R-San Luis Obispo).

"It will be bipartisan, and that's really important," said Lowenthal.

The night in question began for the alleged rape victim, called "Jane Doe," drinking several beers at a Cerritos party. She left with her boyfriend and headed home with friends.

Inside her bedroom, "Jane" and her boyfriend decided against having sex. He left after Jane fell asleep.

Prosecutors say Jane woke up to the sensation of having sex, realized it wasn't her boyfriend, and pushed him away.

The defendant, Julio Morales, continued the sex as she cried, but eventually left the room.

Morales served three years in prison on a felony rape conviction. But this week appellate judges overturned that conviction because the jury wasn't told about that 1872 rape law.

Even if the law is changed for the future, it couldn't be applied retroactively to re-try Morales.

"When you have some evidence, enough evidence, to go to trial but because of a loophole, you don't get justice, that's a horrible feeling a victim goes through," said Patti Giggans, executive director of Peace Over Violence.

Achadjian says there was a similar case to this in Santa Barbara last year where an attacker pretended to be a boyfriend but could not be prosecuted for felony rape.

After that, Achadjian says he introduced a bill to change the law that passed the state assembly unanimously but got caught up in a state senate committee.

Now, he says, after hearing about our story, he'll introduce new legislation early next week.