California lawmakers may change a controversial law from the 19^th century after a case made headlines and raised eyebrows nationwide.

It was a nightmare come to life: Jane Doe, a California resident, went home after a night of drinking and woke up to discover a man having sex with her who wasn't her boyfriend.  As soon as she realized what was happening, she pushed him away and tried to get away from her attacker.  She subsequently reported the assault to police.

After her rapist was arrested and convicted, he began serving a three year sentence.  However, a California appeals court overturned the conviction, stating that according to the “rape by deception” statute Jane Doe's rapist was prosecuted under, rape by deception can occur only when a man is impersonating a woman's husband.  A boyfriend, even a co-habiting one, wouldn't qualify—in other words, while a married woman could have obtained a conviction in this case, Jane Doe's unmarried status made it possible for her rapist to walk away free.

California lawmakers, especially women in the legislature, have expressed dismay over the court's ruling.  The appeals court judges stated that while they agreed that the law should apply to boyfriends as well as husbands, their hands were tied by the letter of the law itself.

California rape by deception statutes date to approximately 150 years ago, when cohabiting was forbidden except between spouses.  This means that the law was simply never updated to reflect changing societal norms.  As of 2012, married couples now represent a minority of households in the United States, making the current California law seem even more out of step with the way that Americans live today.

In response to the case, legislators in California have begun working on revisions to the state's rape laws.  In the revised version of the rape by deception law proposed by three California lawmakers, boyfriends and girlfriends could also be impersonated illegally by a rapist.

California's Attorney General, Kamala Harris, says that the case clearly “involved a non-consensual sexual assault that fits within the general understanding of what constitutes rape.”  State officials intend to work together to see how they can best avoid similar situations in the future.  The Office of the Attorney General is also considering the possibility of re-trying the case under a different section of California's rape laws.  However, constitutional prohibitions on double jeopardy may make it impossible to re-try the case regardless of the new charge.

Source: womenscaucus.legislature.ca.gov