November 21, 2010 in Idaho

Rape by fraud statute only for spouse, so pair go free

Associated Press
 

BOISE – A judge has dismissed rape charges against two southwestern Idaho men, citing a quirk in state law concerning an unmarried woman being tricked into having sex with a stranger.

Fourth District Judge Cheri Copsey said what happened was despicable but that she had no choice in dismissing the rape and aiding and abetting a rape charges on Wednesday against the two Boise men.

Police say that in July the intoxicated woman was tricked by her then-boyfriend, Zachary McGraw, into having sex with a stranger, Cielo Sanchez.

Idaho law specifies that rape can be charged if the victim is tricked into believing the person committing the act is her husband.

Copsey said that because the woman thought she was having sex with her boyfriend, she’s not protected by Idaho law.

“I can’t condemn the judge – she doesn’t write the law,” said Ada County Deputy Prosecutor Cathy Guzman, who had hoped to use the “unsoundness of mind” subsection in Idaho law to prosecute the case. “In my mind, this was definitely a crime. But Idaho doesn’t have a rape by fraud statute unless you are married.”

Copsey blamed Idaho lawmakers for not updating the law.

L. Craig Atkinson, McGraw’s defense attorney, filed a motion to dismiss the charges, contending Idaho’s rape statute didn’t apply.

“There are no allegations in this case that the victim was unable to resist due to intoxication,” Atkinson wrote in the motion. “The allegations are the (woman) consented to intercourse, but terminated the intercourse after realizing the individual she was having sex with was not her boyfriend.”

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