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The case of a Santa Barbara County intruder who could not be prosecuted for felony rape because his victim had a live-in boyfriend, not a husband, prompted the Assembly to pass legislation today to close that loophole.

The measure, Assembly Bill 765, passed the Assembly without a single no vote in response to what must be one of the oddest chain of events and strangest rape cases in California history.

The identity of the woman involved has been kept confidential because she is a crime victim, but the following is an account of her attack from AB 765 and an interview with Santa Barbara County District Attorney Joyce E. Dudley, who prosecuted the case:

The woman was asleep in her bedroom and her live-in boyfriend was asleep on a couch when the intruder entered through the unlocked front door, crawled into the woman's bed and began initiating sexual activity.

Thinking the man was her lover, the woman did not balk, until she heard her boyfriend cough from the other room. She then screamed and her attacker fled the residence, only to be arrested later.

Now the catch: California law would allow the intruder to be charged with felony rape, despite the victim's consent, if the offender had impersonated the woman's spouse - but not her live-in boyfriend.

The provision of Penal Code 261 applies when 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."

In the Santa Barbara case, there was an extenuating circumstance: The man also was wanted for three other sexual assaults, though none of the other cases involved penetration. He received a 17-year prison sentence.

AB 765 is sponsored by the Santa Barbara County District Attorney's Office, which was frustrated by its inability to charge rape.

"To be victimized by a rape is one thing -- to be revictimized by the criminal justice system is another thing entirely," Dudley said.

The legislation by Assemblyman Katcho Achadjian, R-San Luis Obispo, simply would expand the penal code definition to include cohabitants.

"My heart goes out to the victim whose story motivated me to author this bill," Achadjian said in a written statement. "While no piece of legislation can heal the wounds associated with rape, I am hopeful that the continued success of this bill will bring her a small amount of comfort."

AB 765, with bipartisan support, now goes to the Senate.

* Updated at 5 p.m. to provide details from District Attorney Joyce E. Dudley.



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