THE INTERNET IS WRONG SOMETIMES

Did California just reclassify rape as a non-violent crime?

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Don’t believe everything you read on the internet, folks. After Tuesday’s election, a tweet circulated claiming Californians voted to reclassify rape as a non-violent crime with a measure known as Proposition 57—causing many of us sink even deeper into our depressive stupors.

The problem is, this tweet is 100% incorrect—despite the fact that more than 40,000 people retweeted it.

Let me break it down for you.

Californians and the passage of Prop 57 didn’t reclassify anything. Per the California penal code, which was established in July 1977, rape is still considered one of 23 violent felonies in the state. What Prop 57 did was allow for people convicted of non-violent felonies to be granted earlier parole, explained Paul Takakjian, a criminal defense attorney in Southern California.

So how did rape enter the conversation?

Prop 57 aims to help solve California’s overcrowded prison problem by enacting three significant changes: (1) sending fewer juveniles to adult courtrooms, (2) allowing easier parole for felons who have not been convicted of one of California’s designated “violent” crimes, and (3) creating new good-behavior credits that all state prisoners would be eligible to earn, which can contribute to parole.

The notion that rape would be reclassified likely stemmed from a misinterpretation of nuances in the penal code. As I mentioned, rape is considered a violent felony under the California penal code—but only in two specific circumstances:

Where it is accomplished against a person’s will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.

And:

Where the act is accomplished against the victim’s will by
threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat. As used in this paragraph,
“threatening to retaliate” means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or
death.

In other words, when rape is committed by force or by threat.

Prop 57’s easier parole measure does not apply to people who have committed these crimes.

Good, right? The trickier part is that since the state’s penal code only classifies some rapes as “violent” felonies, it means the other types of rape are considered non-violent: Statutory rape, the rape of an unconscious person, the rape of an intoxicated person, and rape using a controlled substance—none of these are designated “violent” crimes.

Thus, under Prop 57, those convicted of “non-violent rape” could be eligible for parole earlier, said Takakjian. But these individuals were always eligible for earlier parole than people who had committed rapes classified as “violent” felonies. Prop 57 didn’t change the penal definition of rape.

If anything, the passing of Prop 57 is simply a fresh reminder that California’s penal code has accounted for these “non-violent” rapes for decades. We saw this reality play out last summer when former Stanford swimmer Brock Turner was convicted of sexually assaulting an unconscious women but was only sentenced to six months in jail with probation, and ended up only serving three months.

Following that catastrophe, Governor Jerry Brown signed two laws that broadened the power of judges to officially adjudicate sexual assault as rape and created mandatory minimum sentencing for people convicted of rape. (Prior to the bills, rape was only defined as an act involving sexual intercourse. The bills expanded this definition to include all forms of nonconsensual sexual assault.)

The upshot? If you take issue with the fact that the rape of an unconscious or drugged person is not classified as “violent,” persuade your legislators to amend the penal code—because Prop 57 is not to blame.