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David Nollmeyer

Professor Lisa F. Cason. J.D.

CJAD 301 Criminal Law

June 3, 2011

California AB No. 765: Incorporating Coinhabitant As Complainant Against Rape

California Assembly Bill No. 765

Introduced by Assembly Member Achadjian

(Coauthors: Assembly Members Jeffries, Portantino, Williams)

(Coauthor: Senator Harman)

Case Description

California Assembly Bill No. 765 was introduced on February 17, 2011 to remedy

a loophole that inhibits rape by fraud or impersonation. The intent of ABA 765 is to correct

language that in Section 261 of the California Penal Code that specifies that rape is the

culmination of sexual intercourse of one who is not the spouse.

Section 261 has language that protects married persons who are spouses but not

coinhabitants from unconsensual intercourse perpetrated to create the belief that abuser is

the spouse. Here the differentiation between spouse and coinhabitant should not exclude a

rape prosecution for non-consensual intercourse.

In essence AB No. 765 eliminates any ambiguity when non-consensual intercourse

- rape is initiated when there is belief that perpetrator is the spouse or coinhabitant.

Two years ago in Santa Barbara an intruder broke into a home and approached a

female who had a live in boyfriend, not the legal spouse. The intruder initiated sexual
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intercourse and the victim who was asleep at the time initially did not resist. Her boyfriend

was in the next room and after hearing him cough she began to resist sexual intercourse.

Special Interests Groups or Third Parties Effected

AB 765 appears to have struck a harmonious chord between Democrats and

Republicans. There is a state mandated program that is embedded within the act. I do not

see any discord with increasing the size of the state within ideological differences. There

does not appear to be any opposition from any libertarian or civil rights group in this

instance. Two rape advocacy concerns are solidly in support. They are the Santa Barbara

Rape Crisis Center and California Coalition Against Sexual Assault. Successful passage of

AB 765 will affirm their advocacy.

Theoretically rape by fraud or impersonation also presents problems in

construction - the degree of violence, penetration, statutory rape and medical

impersonation (Falk). Here AB 765 directly involves a perpetrator who attempts to

impersonate the spouse against a live in coinhabitant who would normatively have access

to consensual intercourse.

Arguments

Pro

Section 261 or the rape statute appears to be poorly thought out and maintained.

California and Idaho have statutes that maintain that a female victim can only charge an

aggressor with felony rape if she believes that she has been violated by her husband.

Tennessee already has a rape impersonation statute in place since 1989. Idaho will have it’s

law in force in July 2011.

According to Idaho’s Ada County deputy prosecutor Cathy Guzman:

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“As unusual as it might sound,” Guzman went on to say, “we do have cases where
an individual who preys on homes where it is known, have scoped out, a woman
who will at times be alone. They then sneak into the home right after the significant
other leaves and when the woman is least expecting a stranger, approach under the
stealth of darkness and attempt intercourse, sometimes successfully enough to
accomplish penetration.”

Passage of AB 765 protects all persons from perpetrators attempting to impersonate

the spouse to initiate consent for sexual intercourse.

Con

After an illegal forceful entry into a home, I do not believe that consensual sex is

likely to occur. However any representation of a female and male living together in a

conjugal relationship outside of marriage could be construed as eroding traditional

marriage. The term and usage of coinhabitant appears to have an equivalency with the

spouse in legal traditional marriage. In the Model Penal Code this issue is discussed in

Article 213.1 2(c) Sexual Offenses as he knows that she is unaware that a sexual act is

being committed upon her or that she mistakenly supposes that he is her husband.

(Scmhmalleger).

Article 230 Offenses Against the Family includes language in reference where

cohabits is used to criminalize plural marriage as polygamy (Scmhmalleger).

Conclusion

The State of California has failed to protect it citizenry, especially women from

rape by deception. It’s statutes permit’s a type of violation that is reinforced through what I

would argue is a mechanistic interpretation of rape. I do not believe any misrepresentation

from an attacker under any instance substantiates what is a prima facie crime of rape -

unconsensual intercourse. This type of interpretation is misogyny. The rape advocacy and

sexual abuse support groups and community need to be vigilant and press judges,
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prosecutors, legislators, and educators must be made aware of this irrationality. I do not

support this type of interpretation as passing any test of reasonableness within the most

liberal stance of protecting the suspect’s rights.

Works Cited

Achadjian , Jeffries, Portantino, Williams and Harman. “AB 765 Achadjian Crimes:

rape. An act to amend Section 261 of the Penal Code, relating to crimes.”

TotalCapitol.com. 31 May 2011.

<http://totalcapitol.com/?bill_id=201120120AB765>

“CA poised to join handful of states tackling rape by fraud.” The Santa Barbara News

Network. 31 May 2011.<http://www.thesbnn.com/?p=24638>

Falk, Patricia J. “ *39 Rape By Fraud And Rape By Coercion.” 64 Brook. L. Rev. 39.

Brooklyn Law Review. Spring 2008.

“Section 261.” onecle. 31 May 2011 http://law.onecle.com/california/penal/261.html

Scmhmalleger F, Hall, D. and Doltowski J. Criminal Law Today. Pearson Custom

Publishers 2011. 515-516, 521-522.

Welsh, Nick. “DA Dudley Sponsors New Rape-By-Impersonation Bill Clears Important

State Assembly Committee.” The Santa Barbara Independent. April 12, 2011. 3

June 2011.

<http://www.independent.com/news/2011/apr/12/da-dudley-sponsors-new-rape-

impersonation-bill/>
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