Here’s an example of the over-complexity that results from too many laws on our books, and of the injustice that is inflicted as a result of that over-complexity.  Jacob Gershman, writing in The Wall Street Journal‘s Law Blog describes an instance of rape that isn’t rape.

Here are two cases.  In one, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her boyfriend.  In another, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her husband.

A lower court convicted the man in the first case of rape, and an appellate court reversed—no rape had occurred.  Here’s the law on that, as described by that appellate court:

…a victim of a crime is deemed “unconscious” when he or she is “not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

But pretending to be someone else is a fraud of “inducement” not “fact.” That means that the jury couldn’t convict [the…man] on that basis[.]

A married woman, similarly tricked (differing only by the…man…pretending to be husband rather than boyfriend), would get the rape conviction, as the appellate court also pointed out in its ruling in the first case.

…California’s penal code “provides that rape includes an act of sexual intercourse ‘[w]here a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.'”

California’s Attorney General Kamala Harris is on the case, though.

The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape.  This law is arcane, and I will work with the Legislature to fix it.

Look for yet another law on the books, rather than a merging of these two laws into a single one with a unified definition of rape.