Mandatory registration for rape of intoxicated person UNLESS that person is your spouse??? WTF

Another reversal on an instruction issue today which taught me something I did not know, and led me to an opinon that is the most illogical farkata piece of shit opinion I’ve ever read…”with all due respect” to the now Chief Justice Cantil-Sakauye and Judge Raye.

This case today is from LA County, again.  What had happened wuz: D is charged with a DV and failure to register. Hung jury on the DV. Went down on failure to register.

D’s prior sex offense was a spousal rape. Apparently, “[N]ot all spousal rape requires sex-offender registration.”  (People v. Mason.)  Indeed, section 290 requires registration for a conviction of spousal rape if it involves the use of force or violence for which the person is sentenced to the state prison.  (Penal Code section 290(c).) So, if you rape your spouse while she is unconscious or asleep or too intoxicated no mandatory registration (sure the judge can still eff you under discretionary registration).

Yet, if the victim is not your spouse, and you rape said victim in her sleep or when she is unconscious, or intoxicated, mandatory registration for life.  (Penal Code section 290(c) [requiring registration for a violation of subdivisions (1)-(4) or (6) of section 261(a) but only 262(a) if it involves force AND a prison sentence.])  WTF?  Sounds like a pretty good equal protection clause claim if you are required to register for raping a non-spouse.  Is there any rational basis to distinguish between raping one’s spouse in her sleep versus raping one’s girlfriend of 10 years in her sleep? Am I missing something? Apparently I am.  According to this farkata opinion from 2010, there is a rational basis to distinguish to the groups because, wait for it:

” As our Supreme Court recognized in Hofsheier, section 290 registration serves ‘to notify members of the public of the existence and location of sex offenders so they can take protective measures.’ ( Hofsheier, supra, 37 Cal.4th at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) This rationale serves a legitimate purpose in the case of sex offenders, such as defendant, who commit their crimes against strangers and acquaintances. However, sex offenses against spouses involve victims with preexisting and presumably significant relationships with the perpetrators. Since the spousal victim has a unique relationship with the perpetrator, the victim does not require public notice to become aware of the danger of repeated sexual assault.” (People v. Jeha (2010) 187 Cal.App.4th 1063, 1077.)

What. the. fuck.   Um, 1) isn’t the whole point of 290 to protect the public, you just acknowledged this.  Is it so clear that you do not even need to state your implicit assumption in this opinion that it is just common knowledge that a D who rapes his spouse is no danger to any one else in the public???? I.e. if D is raping his wife no need to notify the public because everyone knows that people who rape their wives won’t sexually assault non wives.  Someone willing to rape his wife respects the marital bond so much so that he will not rape outside his marriage.  Alllllrgith.  2) If the issue is that D doesn’t need to register because “the victim does not require public notice” then why does D in any case have to register? 3) aren’t we really working with the false binary here that there are Ds who rape “strangers and acquaintances” and D’s who rape spouses? What about, oh I don’t know, the shit ton of people who rape slash molest family members??? Don’t these people have “preexisting and presumably significant relationships with the perpetrators (and those folks have mandatory registration”)??? Also, following the earlier logic, if D rapes his own daughter or nephew or family member, why does the whole public need to know? Can’t we just follow the same logic above, that if you rape your wife you only rape your wife and wouldn’t move on to a non wife, and assume that he will only rape inside the family, in which case a mass email to family’s googlegroup would suffice for notice instead of Megan’s law?   4)Anyone??? This is some bullshit.  I’d like to note that my solution is not make people who rape their spouses by intoxication register.  It is, rather, abolish all registration because that shit is stupid and doesn’t prevent crime.  That said, I do cruise Megan’s law. Just in case. Kidding. Kind of.

Sidenote, I am SUPER anti the current form of the rape by intoxication law because I think a person should only be guilty of that crime if  he subjectively believed (however unreasonable) that CW was too intoxicated to consent.  I would make it an affirmative defense that he was too intoxicated to know whether CW was too intoxicated and/or to consent himself.   Seems very unfair that you are branded a sex offender because you got shitfaced, blacked out, and next thing you know some girl who was equally as blacked out claims she was too drunk to consent. If it is a defense for her it should be one for you too.

In this case, the court did not instruct the jury that they needed to decide whether, and the DA need to prove beyond a reasonable doubt that, Mr. Mason’s prior spousal rape involved force or fear.  Interestingly, D’s prior definitely included allegations of force.  The AG argued that Mr. Mason invited the error by failing to ask for the correct instruction.  Court of Appeal’s response (hereafter in every JJC post “CAP”): this isn’t applicable where, as here, the instruction was an incorrect statement of law. No shit!

But what about the harmless error issue? Well, no evidence came in at trial that could have established that the prior involved force. At the px, which the CAP had the transcript of, it came out that the prior did invovle force.  Luckily, the prejudice analysis does not take into account things outside what was before the jury.  In other words, CAP doesn’t ask “well, what if the prosecutor had done their job right, couldn’t they have easily proved force?”  They do ask: “if the jury had been instructed properly, could the jury have reasonably concluded that the prior involved force?”  The answer was no.  DA and the judge botched this one. I will refrain from speculating whether the defense attorney knew about the error and let it happen or did not know either.  In any event, hopefully this guy gets CTS now.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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