A Controversial Rape Trial in the Central Valley - Explaining California's Gender Neutral Rape Laws, Pronoun Requirements, and Prison Housing Assignments

While Addressing a Problematic Law in a Rape Trial, Madera County District Attorney Sally Moreno Mis-States Basic California Criminal Law

Recently, a California judge in a rape trial ordered prosecuting attorneys to refer to a transgender defendant by her preferred pronouns of “she” and “her.” Prosecutors in the case took to the airwaves to criticize the judge’s decision (which I think is rather questionable) and social media has condemned.¹

The defendant, Tremaine Deon Carroll, is an incarcerated violent felon. Carroll is a biological male who did not transition (i.e. have gender reassignment surgery, take cross gender hormones) and was never diagnosed with gender dysphoria.

However, Carroll was placed in a women’s prison, Central California Women’s Facility in Chowchilla, upon Carroll’s declaration of transgender status and personal request to be housed in a women’s prison.

After impregnating a cellmate at Central California Women’s Facility in Chowchilla, Carroll was transferred back to a men’s prison. Afterwards, two other female cellmates in Chowchilla came forward to accuse Carroll of rape while Carroll was incarcerated there.

In an interview with local news, Madera County California District Attorney Sally Moreno strongly criticized the judge’s decision to order prosecutors to use Carroll’s pronouns. Then, she added the following:

This is a particular issue in this case because it’s confusing for the jury. In California, rape is a crime that has to be accomplished by a man.

I am honestly dumbfounded by her statement.

That is a complete mis-statement of California law. Under California law, rape is not a gender-specific or sex-specific offense.² In fact, it has not been since 1979 (longer than Tyler Perry’s Madea has lacked a driver’s license).³ And it’s rather concerning that Moreno does not know this since she is the top prosecutor in her county.

Moreover, her inaccurate legal statement about rape distracts from the need to address a recently enacted law, SB-132 (2020), that allowed Carroll to be placed in the women’s prison in the first place.

I. The Trial Court Judge’s Decision to Enforce the Preferred Pronouns of the Defendant

Notwithstanding the social media uproar, the judge is likely making the right call to require the usage of Carroll’s preferred pronouns.

In a criminal trial, a judge has great leeway to control their courtroom.⁴ A judge needs to ensure that a criminal defendant receives a fair trial.⁵ And a judge has the power to ensure that a criminal defendant, including a transgender one, gets a fair trial.⁶

Whether one agrees with the law, the judge is also observing a criminal statute that requires government officials to address an incarcerated individual by their chosen pronouns.⁷ The judge is obligated to follow all relevant statutes.⁸

Although there has been a rush to scream about a “rapist” being valued over a victim by forcing the use of preferred pronouns, a defendant is still innocent until proven guilty.⁹ Carroll needs to receive a fair trial and the judge is taking steps to ensure that will happen.¹⁰

Consider the following scenario.

Let’s assume there is very strong evidence against Carroll and Carroll is convicted of rape against the two female prisoners. However, Carroll is able to show anti-transgender discrimination in the trial on appeal. Carroll’s conviction might well be reversed with a new trial ordered.¹¹ I can’t think of much worse for the rape victims than having to go through another trial.

II. Rape is Not Sex or Gender Specific Under California Law

District Attorney Moreno’s statement is legally inaccurate because:

1. Women can be perpetrators and men can be victims under the rape statute prohibiting non-consensual vaginal sex.

2. California’s three other major sex crime statutes addressing other forms of non-consensual sex (colloquially described as “rape”) are treated legally the same as non-consensual vaginal sex under the rape statute. Under all four of these sex neutral statutes, the sex of the perpetrator and the sex of the victim is irrelevant.

Under California’s original rape statute, Penal Code Section 261, there are seven distinct types of rape. I will restate the exact statute since the District Attorney Moreno apparently does not know what the statute says.

Under Section 261, “rape is an act of sexual intercourse” that occurs under the following circumstances:

1. “If a person who is not the spouse of the person committing the act is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law.”¹²

2. “If 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.”¹³ “Duress” is defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.”¹⁴ “Menace” is defined as “any threat, declaration, or act that shows an intention to inflict an injury upon another.”¹⁵

3. “If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.”¹⁶

4. “If a person is at the time unconscious of the nature of the act, and this is known to the accused.”¹⁷ For this provision, the phrase “unconscious of the nature of the act” is defined as “incapable of resisting because the victim meets any one of the following conditions”:

   1. “Was unconscious or asleep.”¹⁸

   2. “Was not aware, knowing, perceiving, or cognizant that the act occurred.”¹⁹

   3. “Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.”²⁰

   4. “Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.”²¹

5. “If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”²²

6. “If 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.”²³

7. “If the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, ‘public official’ means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.”²⁴

As you can see from the plain language of the statute, the crime of rape is sex and gender neutral.²⁵ Even though it is extremely rare, a man can be the victim of rape and a woman can be the perpetrator of rape.²⁶ It is also well-established law that one can be convicted of the crime of rape even if one lacks a penis.²⁷

The definition of what constitutes rape is dependent upon the feelings of the victim with any amount of sexual penetration sufficient to constitute rape.²⁸ Further, the definition of rape does not include the elements of male anatomy.²⁹ Rape also does not require full vaginal penetration.³⁰

While it’s rare that a woman can physically overpower a man and even rarer that she would do so in order force him to have sex with her, it’s not completely impossible.

Take the example of former Los Angeles Police Department detective Stephanie Lazarus, who was arrested in 2009 and subsequently convicted in 2011 of the 1986 cold case murder of her ex-boyfriend’s then wife, Sherri Rasmussen. Lazarus murdered Rasmussen out of jealousy that he had decided to marry Rasmussen and not her.

Lazarus was incredibly strong and could even overpower or fight to a draw fellow male police officers during physical combat training even though they were physically larger than her.³¹ Certainly, Lazarus, who the California Parole Board earlier this year initially recommended parole for after only serving 13 years of her murder sentence, could likely overpower a non-consenting man to force him to have sex with her.

However, the discussion of physical force and the victim’s ability to resist ignores modern rape law. Physical resistance of the victim is not required for proving the crime of rape.³² The requirement that a victim offer resistance in order for the crime of rape to occur was removed from the rape statute in 1980.³³

A woman could:

• Drug a man and have sex with him against his will.

• Have sex with a man who was mentally disabled and not her spouse.

• Threaten a man with political retaliation, arrest, or prosecution if he refuses to sleep with her. (Not hard to imagine Lazarus flashing her LAPD badge at a man she felt like having sex with).

• Use her position of actual authority or perceived authority to demand sex from a man. (Again, not hard to imagine Lazarus using her LAPD authority with a witness or suspect who she felt like having sex with or using her rank to force subordinates to have sex with her).

• Have sex with a man who was unconscious.

• Trick a man into having sex with her under false pretenses that she was a person the man knew even though she actually wasn’t that person.

A survey of all of California’s sex crime laws confirms that nearly every sex crime statute is written in gender neutral terms and equally applicable to both sexes. Relatedly, the state’s domestic violence statutes are gender neutral too.³⁴

Similar to the rape statute, the statute for statutory rape makes voluntary sex between a minor and an adult a crime regardless of the sex or gender of either the perpetrator or the victim.³⁵

Therefore, an adult woman who has voluntary sexual intercourse with an underage male is just as criminally culpable as an adult man who has voluntary sex with an underage female. While it was at one time sex-specific and applied only to men sleeping with underage women,³⁶ in 1993, the State Legislature changed the law.³⁷

There appears to be only one obscure sex crime law under the Penal Code (leaving one’s wife in a house of prostitution) that prohibits a man from an activity but not a woman.³⁸ Only one other law (forcing a woman to marry against her will) seems to be sex specific as to the victim but is applicable to both men and women as perpetrators.³⁹ Both laws could be rather easily changed (and probably should be).⁴⁰

There might be some confusion as to the term “rape.” The original rape statute, Section 261 of the Penal Code, defines rape as unlawful “sexual intercourse”. Although no definition is provided, the California Supreme Court has held that “sexual intercourse” refers to non-consensual vaginal sex.⁴¹

However, this is not because non-consensual vaginal sex is treated as a greater offense than other types of non-consensual sex.⁴² It’s because all forms of non-consensual sexual assault are treated as rape under the Penal Code.⁴³

Three other separate statutes prohibit non-consensual oral sex,⁴⁴ non-consensual anal sex,⁴⁵ and non-consensual sexual penetration with a foreign object.⁴⁶ These statutes, which are gender neutral, are virtually identical to the rape statute and interpreted the same way but simply address different types of non-consensual sexual conduct.⁴⁷

Why do these laws exist in separate statutes? They evolved over time as reformers sought to change rape laws and modern understandings of non-consensual sex changed.⁴⁸

Oral sex and anal sex between consenting adults in private were once illegal in California.⁴⁹ However, the State Legislature repealed these laws in 1976.⁵⁰ For good measure, California’s courts subsequently held that sex acts between consenting adults in private are constitutionally protected.⁵¹ The foreign object statute was enacted as a catchall for rapists who used non-body parts to commit the crime.⁵²

All four of these laws are the same in terms of their criminal culpability standard and criminal elements.⁵³ All contain the modern legal protections for rape victims. For example, all four laws are the same for:

• Determining whether the victim consented.⁵⁴

• Protecting individuals against spousal rape.⁵⁵

• Protecting victims from implied consent if the victim requested a condom or a form of birth control during the rape.⁵⁶

• Protecting people confined to jails or mental health facilities from employees or officers of the facility who would have sex with them.⁵⁷

• Protecting victims from having prior dating or sexual relationships with the perpetrators from being used as evidence of consent.⁵⁸

• Requiring the police to provide information to alleged rape victims of domestic violence assistance.⁵⁹

• Prohibiting the introduction of evidence of a victim’s sexual habits in a prosecution for rape.⁶⁰

• Prohibiting the introduction of evidence that the way a rape victim dressed provided consent to the rape.⁶¹

Now, perhaps District Attorney Moreno is legally formalistic and refers to each of the four laws separately depending on the non-consensual sex act. Even then, she still mis-stated the law. As discussed, the requirement of a penis for non-consensual vaginal sex to take place would not mean that a man has to commit the rape.

Moreover, her concerns about potential jury confusion are misplaced. Regardless of the labels or pronouns that Carroll uses, Carroll has a penis. Respecting Carroll’s trans identity by referring to Carroll with she/her pronouns does not change any fundamental fact about Carroll, the case, or what the prosecution has to prove.

Some may question the purpose of gender neutral rape laws or even feel slightly offended by them since men are the primary perpetrators of sex crimes. However, their enactment was actually a major step forward for protecting women.

While it’s undoubtedly true that most rapes and sexual assaults are committed by men (even factoring in some under-reporting by male victims and the difficulty in proving rape cases with male victims), gender neutral rape laws were enacted at the behest of feminist legal reformers.⁶² Rape laws that only protected women and only punished men were grounded in gender discriminatory thinking that held women as inferior.⁶³

Sex-specific rape crimes that discriminated against men perpetuated sexist stereotyping against women and led to rape being taken less seriously.⁶⁴ Implementing gender neutral rape laws was a step to better address the problem of sexual violence against women.⁶⁵

Indeed, the legal system today takes rape, as a gender neutral crime, far more seriously than it did in the past when rape was a sex specific crime.⁶⁶

Moreover, it’s part of sound public policy to reduce and prevent rapes. Think of modern forms of rape that can occur that are not necessarily intuitively criminal to young, immature, and impressionable men.

A few examples:

• A college student walks a young woman back to her dorm after a party where she’s too drunk to stand on her own two feet. When he safely gets her back to her dorm room, he asks her if she’d like to have sex. When she doesn’t say no and smiles at him, and he follows through, he has committed an act of rape.

• A young man decides to start choking his girlfriend during consensual sex (as he’s seen done in all his favorite pornographic films) and she tells him to stop. When he keeps going anyway, he has committed an act of rape.

• A young man pretends to be his roommate in order to sleep with his roommate’s girlfriend. In the dark, she confuses the two men and has sex unwittingly with the young man. He has committed an act of rape.

• A young man believes that a non-consenting woman has consented to sex because that woman previously consented to sex on another occasion. When she doesn’t consent on this occassion, he has committed an act of rape.

• A young man is told that a special potion he purchases (i.e. a mind altering illegal substance) will help make a woman who previously rejected him (or even a woman who wouldn’t reject him but one who he’s too afraid to ask) decide he’s physically attractive and sexually desirable. He slips the drug to the woman and has sex with her. He’s committed an act of rape.

The above examples describe criminal acts of rape but they are committed by men who usually understand that it’s wrong to physically overpower a woman and force her to have sex with him against her will and presumably understand that “no means no”. They have committed acts that were once allowed but have become outlawed as society has recognized their wrongfulness and violation of bodily autonomy.

If men know that they too can be victims of rape and are taught rules of consent for their own bodies, they are much less likely to commit acts of rape against others. One might argue that the men in the above examples would be guilty of rape as ignorance of the law is no excuse.

That’s certainly true.⁶⁷ However, the chief policy goal in addressing sexual violence against women should be finding ways to prevent and reduce rapes. The fewer people who offend and the fewer victims of rape, the better. By making rape laws gender neutral and including men, this has furthered that policy goal.

The recent success of the MeToo movement demonstrates this effect. Sexual harassment laws apply equally to men and women, regardless of the sex of either the perpetrator or the victim.⁶⁸ To the extent that the MeToo movement advanced women in the workplace, it has taken place under a legal scheme that does not treat men differently for these purposes.

Why else are California’s sex crime laws written to be gender neutral?

The California Constitution guarantees equality under the law regardless of sex, treating sex discrimination as the same as race discrimination.⁶⁹ Laws that punished men and women differently or made some activities a crime for one sex but not for the other would violate that fundamental principle.⁷⁰ While men sexually offend more than women, the Constitution protects individuals, not groups.⁷¹

The California Constitution also protects the right of privacy and bodily autonomy.⁷² An individual does not truly have that protection if the law allows other individuals to sexually violate them against their will. The fundamental constitutional right to sex always means consenting adults.⁷³

Why is what District Attorney Moreno said so problematic?

All public officials, including elected officials, are required to follow the law.⁷⁴ I’m not sure that District Attorney Moreno follows the law since she clearly doesn’t know what the major criminal laws are.

Worse than that, there has long been an issue of rapes being unreported by victims. If the District Attorney does not know what rape is, there are probably many more rape victims who don’t report the crime.⁷⁵ There are also victims of sexual assault legally equivalent to rape who decide to not report because they erroneously assume it’s not a serious crime as it’s “not rape”.

III. The Real Issue - SB-132

District Attorney Moreno’s legally ignorant statement undercuts what is actually an important issue and arguments regarding a bad law, SB-132.

You might be wondering how we find ourselves in this situation. How did a male inmate impregnate a female prisoner? How did he have the opportunity to rape two female prisoners? What was he doing in a women’s prison? How was he allowed to be housed in a women’s prison?

It’s due to SB-132, a 2020 law authored by State Senator Scott Wiener (D-San Francisco) and signed into law by Governor Gavin Newsom. (Its passage in August 2020, during the height of pre-vaccine and pre-Paxlovid COVID-19 pandemic demonstrates that this was clearly an important priority for those who we elect to represent us in Sacramento).

The law allows any male prisoner who declares themselves to be “transgender” to be transferred into a women’s prison on demand.⁷⁶ A prisoner may declare themselves to prison officials be transgender at any time.⁷⁷ The law does not require any kind of medical or even social transition.⁷⁸ As long the prisoner declares themselves to be transgender, non-binary, or intersex, their request must be honored.⁷⁹

A request will be denied only if the Secretary of the Department of Corrections and Rehabilitation certifies, in writing, a “specific and articulable basis why the department is unable to accommodate that search or housing preference.”⁸⁰ A copy of the statement must be given to prisoners who then must be given a reasonable time to offer verbal objections, and their verbal objections must be documented.⁸¹

SB-132 makes clear that reasons for denial cannot include:

1. “The anatomy, including, but not limited to, the genitalia or other physical characteristics, of the incarcerated person.”⁸²

2. “The sexual orientation of the incarcerated person.”⁸³

3. “For a denial of a housing preference . . . a factor present among other people incarcerated at the preferred type of facility.”⁸⁴

Although I am certain that Senator Wiener and his devoted supporters would label me transphobic and homophobic for saying so, I don’t think this law was a particularly good idea.

While transgender prisoners need to be fully protected, a blanket, no-questions-asked policy that does not even distinguish between a convicted felon who has lived their life as the opposite sex prior to conviction and a prisoner who simply decides on a dime that they are transgender is highly problematic.

Think of the case of Joseph James DeAngelo, the notorious Golden State Killer who was California’s most prolific serial offender. Between 1976 and 1979, he raped at least 50 women in Northern California (in many cases, with the victim’s male partner present) and murdered at least 13 others (including at least four women who he raped before murdering them).

If tomorrow morning, DeAngelo wakes up and says “I feel like I’m a woman today and I’d like to be transferred to a woman’s prison.”, under Senator Wiener’s law, his request must be honored. Unless the Department of Corrections decides to object….in a certified writing…that DeAngelo must see and have time to verbally respond to…..and his verbal objections are documented.

And just to respond to what I anticipate Senator Wiener would argue:

• While strict scrutiny must be used to evaluate the scheme, the United States Supreme Court has held that race segregation of prisoners within California prisons could be constitutional under the Equal Protection Clause.⁸⁵

• While incarcerated felons certainly do not lose all constitutional rights once entering the prison walls, their constitutional rights are lessened as prisoners.⁸⁶

California has subjected all governmental sex discrimination to the highest form of judicial scrutiny since 1971.⁸⁷ Courts unfortunately didn’t always follow this standard perfectly in the beginning.⁸⁸ However, courts ultimately adhered to it and struck down laws that discriminated on the basis of sex or gender.⁸⁹

But in all that time, no case has ever been brought alleging that segregating prisons between men and women violated California’s Equal Protection Clause. That’s perhaps because strict scrutiny does not invalidate all laws.⁹⁰ And maintaining prison safety is a compelling governmental interest.⁹¹ Prisons also have slightly more discretion in administration notwithstanding constitutional restraints.⁹²

There are very good reasons for segregating prisons by biological sex.⁹³ Men and women are biologically different.⁹⁴ Even United States Senator

Chris Murphy

(D-Connecticut) has written, in The reason to care about the plight of men, “we just need to admit that men are different biologically than women.”

Female prisoners, however violent they may be, are at risk of being subject to violence if housed with male prisoners. They can become the easy target of incarcerated male sex offenders. Housing male and female prisoners together also invites the opportunity for prisoners to impregnate one another (as happened here).⁹⁵

While medical transition usually sterilizes, it doesn’t always do so and under Senator Wiener’s law, one does not need to medically transition in order to claim transgender status.⁹⁶

Moreover, if a court was to hold that doing so was discriminatory on the basis of sex, it wouldn’t mean that transgender women would have to be housed in women’s prisons. It would mean that all prisons would have to be co-ed with all prisoners housed together, regardless of their sex or gender.⁹⁷

Frankly, there ought to be more public discussion of SB-132. However, it’s difficult when opponents can be labeled as transphobic and homophobic bigots. And efforts to oppose the law is hamstrung by elected District Attorneys who mis-state basic legal facts and other right wing ideologues looking to restrict the rights of others.

Tremaine Deon Carroll should not have been housed in a women’s prison. What has occurred was almost certainly foreseeable. And this would be true even if he is not guilty of the crime of rape. Having a male in a women’s prison who does not medically transition invites situations of pregnancy and the potential for rape accusations.

IV. A Final Word

Rape in California is not a sex-specific offense. Saying so is legally inaccurate and also degrades other forms of sexual assault that are commonly denoted as “rape” even if charged under a separate statute.

There needs to be a rethink of SB-132. While the protection of incarcerated transgender inmates is paramount, the protection of transgender inmates should not be done at the expense of incarcerated female prisoners. Those advocating for legal changes need to know what our laws actually are. This is especially true if they serve as an elected District Attorney.

On a final note, this is my last article of 2024. I want to say thank you to all my loyal subscribers, both new and returning. More is coming from Off-Script: The Liberal Dissenter in 2025. In the meantime, I wish all of you a very safe and happy new year!!!

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. See In re John Z., 29 Cal. 4th 756, 764 (Cal. 2003)(Brown, J., dissenting)(explaining that “California’s rape statutes are gender neutral”); Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 222-223 (Cal. 1991)(Arabian, J., concurring)(“In 1978, California saw the birth of Penal Code section 289 (Stats. 1978, ch. 1313, p. 4300), criminalizing sexual assaults with foreign objects and imposing substantial penalties for their commission. This was followed in 1979 by the extension of California's substantive rape statute to encompass rape by a spouse and the adoption of a gender neutral definition of the offense.”).

3.