After a Santa Barbara County sexual assault case involved a
victim mistakenly giving consent after her attacker impersonated
another individual, the Senate Public Safety Committee has now
unanimously approved Assembly Bill 65, a bill clarifying that
attackers who impersonate someone else during an assault are guilty
of sexual assault. The legislation, which gained approval last
Tuesday, protects sexual assault victims who have agreed to engage
in a sexual act under the false impression that the perpetrator’s
identity is that of someone else. AB 65 will continue through
appropriations, to be passed by the Senate and then signed into law
by Governor Jerry Brown by the end of June. According to Joyce E.
Dudley, Santa Barbara County District Attorney, the bill was
initially introduced after county officials dealt with a court case
in which Santa Barbara County resident Courtney Weetach was
assaulted by a friend of her boyfriend. The perpetrator broke into
Weetach’s home and instigated sexual activity with her, while
Weetach was left under the impression that the attacker was
actually her boyfriend. Despite catching the suspect, the District
Attorney was unable to legally prosecute him for felony rape
because the victim and her boyfriend were not married at the time.
According to Bonnie Lowenthal, chair of the California Legislative
Women’s Caucus and Assemblymember representing the 70th Assembly
District, current law offers a narrow definition of sexual assault
in cases involving circumstances of impersonation. “Under current
law, rape by fraud or impersonation can only be committed where the
perpetrator holds him or herself out to be the spouse of the
victim,” Lowenthal said. “This same provision applies to specified
crimes involving unlawful oral copulation, sodomy or sexual
penetration by a foreign object.” With this current scope of the
law, sexual assault by impersonation is not considered illegal if
it occurs in cases where individuals are not married spouses,
according to Lowenthal. “Where the victim believed the person with
whom she or he was having intercourse was not the spouse, but
rather, was a cohabitant, boyfriend or girlfriend — no crime was
committed,” Lowenthal said. Additionally, since this narrow scope
excludes the particular circumstances present in Weetach’s case, as
well as the many other incidences of rape by impersonation,
Lowenthal said it can fail to protect those who simply do not wish
to be in a relationship by marriage. “There is a discrepancy in
current law with respect to the protection of a victim who chooses
not to be married, but nevertheless has an intimate relationship
with another,” Lowenthal said. Earlier this year, another sexual
assault case was overturned based on the same technicality, and the
defendant appealed the conviction of sexual assault by claiming the
jury had convicted him on incorrect legal theory. Thereafter,
Lowenthal said the court advised California legislatures to clarify
the loophole in the law after this case, which is People v.
Morales. “The court reversed the conviction because the record
failed to disclose whether the jury relied upon a proper theory to
convict,” Lowenthal said. According to Lowenthal, the Legislature
was asked, specifically, to reexamine section 261, subdivision
(a)(4) and (5) and “correct the incongruity that exists when a man
may commit rape by having intercourse with a woman when
impersonating a husband, but not when impersonating a boyfriend.’”
Such an adjustment of the law is especially necessary, according to
Lowenthal, given the realities of social relations in contemporary
American society. “The existing law is relic from the 1870’s,”
Lowenthal said. “Allowing this to stand in the
21st century would be like applying horse and buggy standards
to our freeways.” In addition to making current law applicable to
modern times, Lowenthal said AB 65 will ensure that the rights of
sexual assault victims are protected and justice is served. “Sexual
assault is inexcusable, period,” Lowenthal said. “It shouldn’t
matter who the victim is when a sexual assault occurs. We need to
make sure that it’s prosecuted to the fullest extent of the law.”
In 2011, AB 765 was introduced by Assemblymember Katcho Achadjian
in order to clarify the definition of felony rape by impersonation.
The bill was held in the Public Safety Committee and was turned
down by the Senate Committee due to overcrowding in California
jails. The bill’s defeat brought national media attention and
outrage, according to Lowenthal, and soon after, Assemblymembers
Achadjian, Lowenthal, Dudley and several others collaborated to
address the issue. Now, AB 65 can potentially ensure the
perpetrator be prosecuted and convicted for committing sexual
assault by impersonation of the victim’s significant other, rather
than only by impersonation of their legal spouse by marriage.
According to Dudley, the bill’s chance of passing is fairly high
and she said she is hopeful the new legislation will protect the
rights of individuals like Weetach. “I am optimistic that the law
will pass,” Dudley said. “I am greatly relieved because this woman
felt, as I said in the case, raped by the perpetrator, and when I
couldn’t file charges for rape because of the way the law was
written, she felt raped by the criminal justice system. And then
when the government — the Public Safety Committee — didn’t move
this bill along 18 months ago, she felt raped by our government.”
      A version of this article appeared
on page 3 of May 21st’s print edition of the Daily Nexus.