Long-time readers (I mean, it’s only been a little over a year) might remember the 2009 case of an 18-year-old California woman who woke up to someone having sex with her, thought momentarily it was her boyfriend, and quickly realized it wasn’t. The rapist was caught and tried, and was convicted of rape based on a state law that says knowingly having sex with a sleeping person is rape because a sleeping person cannot consent. But an appeals court overturned that ruling based on a standing 1872 law that said acquiring sexual consent by impersonating a woman’s husband is rape, but fails to set the same standard for impersonating a known sexual partner of an unmarried woman.
There was an effort to change the law in 2011, but it stalled in committee. This week, California Governor Jerry Brown fixed the problem, and the appeals court has granted a retrial.