Rape laws in America: California finally got it right

Rape laws need to include assaults against unconscious women. Statutes of limitations need to be eliminated. Bill Cosby's case is a prime example of why.

Drunken student at college frat party. An extenuating circumstance in rape cases? Laws are changing. (Image via Wikipedia entry on Fraternities and Sororities, CC. 3.0)

WASHINGTON, October 9, 2016 — As progressive as we are in the United States, certainly compared to many other countries, too many individual states still have in place rape and sexual assault laws that leave much to be desired.

Many states do not view the assault of an unconscious woman the same as if force were used to perpetrate that sexual offense. Because of that distinction, the sentence of an offender can and unfortunately is much lighter than might otherwise be the case.

California now leads the way in the ongoing effort to remedy this situation, having passed a series of laws that eliminate pernicious and outdated distinctions in the law and make penalties stiffer for crimes of a sexual nature that are committed against unconscious women. The California laws speak directly to the scenario of rape, including those in which college women who have passed out due to intoxication or who otherwise are unable to object to an attack even if they are not completely unconscious.

The case of Brock Turner, at the time was a rising sports star at Stanford University in California, was clearly the impetus behind California’s recent legal updates. Turner was convicted of three felony counts of sexual assault this past March. He sexually assaulted an unconscious woman at a party and later blamed his actions on a “culture of binge drinking and sexual promiscuity.”

Judge Aaron Persky, who sentenced Turner, did something almost as bad as Turner’s violent acts. Persky sentenced Turner to six months in jail and three years of probation.

The unfortunate and pervasive mindset of too many men, including Turner’s father and Judge Persky, is that sexual assault and rape against women is not significant. This mindset reveals itself over and over across our nation in many of the laws that currently govern the prosecution and sentencing of rape.

Turner’s father said that his son should not have to pay too steep a price “for 20 minutes of action.” Persky added insult to injury and explained his light sentence, claiming “a prison sentence would have a severe impact (on Turner) … I think he will not be a danger to others.” National disgust was registered over both statements and over 1 million petition signatures called for the judge’s resignation.

Thus, effective January 1, 2017, in California, the following laws will apply to sexual assault and rape offenses:

  • Elimination of the statute of limitations, meaning there is no time limit or deadline in which a sexual assault prosecution can begin;
  • Elimination of distinction between “penetrative” rape and other forms of non-penetrative sexual assault, meaning all of the crimes associated with sexual forms of violence are now included within the framework of the prosecution and sentencing laws and properly viewed as violent acts;
  • Redefinition to include all forms of non-consensual sexual assault to now be considered rape for purposes of the gravity of the offense and the support of survivors; and
  • No longer permitting judges to grant probation or suspend prison sentences in situations where the victim was unconscious or incapable of consent due to intoxication, meaning the “use of force” distinction is gone.
  • Additionally, rape and sexual assault crimes will no longer be excluded from “mandatory minimum” sentences, meaning that there will be mandatory jail time upon conviction.

Some oppose California’s new laws. Some crime victim advocates and associations say the new laws will disproportionately affect poor and minority defendants, both of whom are the kind of defendants that likely do not have the ability to obtain legal representation. Natasha Minsker, director of the ACLU of California Center for Advocacy and Policy, called the sentencing bill “a well-intentioned measure”, but said:

“it would only create more injustices within a flawed criminal justice system. Those who will bear the brunt of this law will be defendants whose parents can’t afford to hire the best attorneys money can buy, defendants who take plea deals for a lesser sentence even if they are innocent because they know judges won’t have any discretion during sentencing, and defendants who are mentally ill or who themselves suffered from severe sexual abuse.”

It is time to reform laws in many states. California’s model needs to be enacted everywhere. Statutes of limitations for rape prosecutions need to be eliminated. Distinctions between violating women who are conscious and semi-conscious or unconscious need to be eliminated. Mandatory minimum sentences need to be in place and carried out.

In June, 2016, a former Indiana University student, John Enochs, was charged with rape in two separate cases. Ultimately a plea deal resulted in both of the felony charges being reduced to a misdemeanor. A one-year suspended sentence was then ordered with no jail time. Both women assaulted by Enoch were intoxicated and both were in party environments. Prosecutors claimed there was not enough evidence. What information was available however makes those claims highly suspect. Nonetheless, to the extent that the prosecutors were correct, the laws in place were mostly responsible for the shocking result.

In April, 2016, an Oklahoma court declared that state law did not criminalize oral sex with a victim who was completely unconscious. As a result, a 17-year-old boy saw no consequences for assaulting a 16-year-old girl. They had been drinking in a park with a group of friends. The boy claimed the girl had consented to oral sex.

After the trial court dismissed the case, the Oklahoma appeals court affirmed the ruling and said: “Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation.”

Oklahoma’s law did not specifically define the situation – a loophole if you will. A clamor has arisen to fix the law to make it a crime to sexually assault an unconscious woman.

The Pennsylvania prosecution of Bill Cosby for sexually violating Andrea Constand has not yet come to trial, but many of the other 56 women who claim he violated them state he also first gave them drugs, rendering them unaware or unconscious. Cosby’s alleged crimes spanned decades and were conducted across ten states and one Canadian province. Statutes of limitations have prevented prosecutions in all but Pennsylvania, where his crime, committed in 2004, was still permissible under that state’s 12-year limiting statute.

The social climate in the United States must lead the way before new laws are enacted. It is unlikely that more laws will pass when Mr. Cosby is convicted. It is more unfortunate—in fact outrageously unfortunate—that what will finally motivate change is more violence.

Women’s lives matter.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.

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Paul Samakow
Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ http://www.samakowlaw.com/. He is also available to speak to your group on numerous legal topics.