The phrase “The law is an ass” was coined in a play entitled “Revenge for Honour” that was probably written by Henry Glapthorne and published by (and frequently mistakenly attributed to)  George Chapman in 1654.

Both the title and the wrangle over identity are bitterly ironic, following the decision of the Los Angeles-based 2nd District Court of Appeal to overturn a three-year sentence for rape on the basis of an arcane legal anomaly dating back to 1872.

According to the Los Angeles Times, the Court of Appeal has interpreted the statute thus:

A man who impersonates someone in order to have sexual intercourse may be guilty of rape only if the victim was married and the man was pretending to be her husband.

You can read the full opinion of The People v. Julio Morales here, where a picture is painted of a young woman (identified only as “Jane Doe”) enjoying a night out with friends, going home, deciding not to have sex with her boyfriend as they had no condoms – and then being raped by a man pretending to be her boyfriend. It is quite clear that in any right-thinking understanding of the concept of rape, Julio Morales is guilty without question. Indeed, reading the judgement, the prosecution contend that he admitted his guilt. Yet, because she was unmarried, and he was impersonating a boyfriend, not a husband, he is apparently not guilty of rape.

So what the hell sort of legal system allows this sort of specious contention to come between a young woman, whose life has been wrecked, and justice?

As a non-lawyer, who could scarcely believe what he was hearing on the radio this morning, I can only think that it is a legal system in which the moral compass of those who interpret the law is subordinated to the irrelevant technicalities of archaic legislation, almost certainly written by men, to benefit men, at a time when General Edward Richard Sprigg Canby was chasing Indians back across Lost River in the Modoc War. Had you heard of General Edward Richard Sprigg Canby? I hadn’t until I started looking at this case and what else was going on in California in 1872. I doubt that “Jane Doe” had either.

Take time to read the opinion.

And forget the technicalities for a moment. Think about those involved as merely people. The victim. The lawyers. The perpetrator. Think about them as merely people in a civilised society. Think about the purpose of the law in that civilised society. Think about its purpose in a modern, socially-aware Western democracy that contends it is working to make its communities secure places in which everyone, regardless of gender, can live, love, play and work safely. Contrast that purpose with what we can only imagine its nascent role to be in the early 1870s, four years before the last stand of George Armstrong Custer and the Sioux Nation at the Battle of Little Bighorn in 1876.

Which of those lawyers behind the appeal could possibly look that woman in the eye and say that the in 21st Century Los Angeles of today they were acting in all good conscience, believing that their client did not actually rape her?

So there we have it. A young woman in 2012 is brutalised and subsequently denied justice because legislators and lawyers derive their basis for legal decision from a past that is completely irrelevant to her life experience today.

Yes, the Court of Appeal urged legislators to act. Yes, legislators have agreed to act.

And yes. The law is an ass.

I hope the retrial of Julio Morales proves otherwise – and provides a measure of justice for “Jane Doe”.