Is That REALLY Still a Law?

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The following is a guest post from Andrew Taylor, Partner in the Family Law Practice at Weber Gallagher

As those who follow the news may have noticed, it seems that here in the U.S., many state lawmakers are slow to pass new laws. However, it’s possible these same lawmakers may be even slower to repeal old laws – even though many of them seem completely ridiculous in the year 2013. In fact, it is hard to imagine a time when some of these laws made sense at all.

While some of these old laws are amusing (and rarely enforced), antiquated laws that remain on the books can have devastating consequences if applied in today’s modern times.

Exhibit A: The Funny Ones

Did you know that in the state of Idaho it is illegal for a man to give his sweetheart a box of candy weighing less than fifty pounds? So, ladies, if you feel unappreciated, move to Idaho. Does your husband get credit for a nice gift if he has to give it by law, though?

In Logan County, Colorado, it is illegal for a man to kiss a woman while she is asleep. I guess it is a good idea to see who is coming in for a kiss before reciprocating, but is this something that needs to be a law? Awake or asleep, watch out if you are in Hartford, Connecticut where it is illegal to kiss your wife on Sundays.

In Kentucky, it is illegal to marry the same man four times. This is a law that might not actually be a bad idea – if the third time was not a charm, you are probably out of luck.

Exhibit B: The Tragic Ones

While it may be fun to read and poke fun at some of these outdated laws, crafty lawyers can sometimes dig one of them up and use it to their client’s advantage, often with shocking results.

For example, take the case in California where a rapist was set free because of an ancient law from the 1800s that remains on the books. In 2009, Julio Morales admittedly had sex with a woman after her boyfriend left her bedroom late one evening. When she realized Morales was not her boyfriend, she tried to fight him off, but to no avail. Morales was convicted of rape by impersonation.

However, a California appeals court recently overturned Mr. Morales’ conviction because of a law from 1872 that says if a man has sex with a woman in California by pretending to be her husband, that’s rape; but if she is not married, and the rapist impersonates her boyfriend, it is not rape. Really? How did this one ever make sense?

The California court stated that because of “historical anomalies in the law in the statutory definition of rape,” the man had not committed rape. The Court went on to say that “if the woman had been married and the man had impersonated her husband,” it would have been rape. The Judges said that they were essentially constrained in setting the man free because of this old law, and they did so reluctantly.

How long until another one of these old absurd laws allows a criminal to walk free? In Arkansas, there is still a law in the books that says a man can legally beat his wife, but no more than once a month. Could some judge in the future feel constrained to apply this law to a domestic violence case and set a man free because he only abused his wife once a month?

The real tragedy in all of this is that the problem can be so easily fixed. Legislators in each state only need to regularly review the laws on their books and vote to repeal any archaic laws that make no sense. Sure, women in Idaho might get smaller presents, but the next rapist in California might actually go to jail.

Seems like a no-brainer.

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