Idaho Criminal Attorney Discusses Idaho Rape Statute Which Allowed Two Men to Go Free

Rape law in Idaho is governed by Idaho Code 18-6101. That statute, however, was unable to protect a woman who had been tricked into believing that she was having intercourse with her boyfriend.

On July 21, 2010 the victim, who had been drinking to the point of vomiting, was escorted to a bedroom by two men whom she had never met. The woman then proceeded to have intercourse from behind with her boyfriend. At some point later, the woman was approached again from behind and, thinking it was her boyfriend, began to have intercourse with the man. After a few moments she became suspicious and questioned whether the man having sexual relations with her was her boyfriend. She jumped up and turned on the light and discovered that the man was not her boyfriend.

The question is, was the woman raped? The Idaho rape law would protect the woman if she was so drunk that she could not give her consent or that her consent was invalid because she was drunk. The victim, however, never made any allegation that she was too drunk to consent. The victim did in fact consent but she thought she was consenting to her boyfriend.

Is there a rape law that protects against trickery? Yes, Idaho Code 18-6101(7). It says that, "Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female… where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.

This code section, however, could not protect the victim because she did not in fact think that the person she was having intercourse with was her husband, she thought that he was her boyfriend. The two men were not convicted of the crime of rape because of that technicality.

As an Idaho Criminal Attorney I can tell you that the Idaho Rape Statute has this and many other "holes" that allow for innocence based upon a technicality. For example, even though the Idaho Code says, "The essential guilt of rape consists in the outrage to the person and feelings of the female... and any sexual penetration, however slight, is sufficient to complete the crime" (ID Code 18-6103), it truly is not subjective like it purports to be. The Idaho Code defines rape as penetration by a penis. If the guilt of the crime is supposed to be subjective, as 18-6103 says it is, then having an object forced into a woman's vagina, mouth or anus should also be rape, if the victim feels that this violation is rape, but that, sadly, is not the case in Idaho. A woman can only be considered having been raped if a penis is used.

This Idaho Criminal Attorney thinks that these loop holes in the Idaho Rape Statute need to be fixed in order to protect and preserve the dignity of women and to prevent further injustice.

For more information about Idaho Criminal Law visit www.lawboiseid.com or call Kershisnik Law at (208) 472-2383 to speak with Idaho Criminal Attorney Pat Kershisnik about Idaho Criminal Law and crimes in Idaho.