(MCT) — SAN FRANCISCO—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, a state appeals court has ruled.
The unanimous ruling, from an admittedly reluctant court, overturned the rape conviction of Julio Morales, who entered a sleeping woman’s dark bedroom after her boyfriend walked out and began having intercourse with her. The woman screamed and resisted when she awoke and realized Morales was not her boyfriend, the court said.
“A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend,” the Los Angeles-based 2nd District Court of Appeal said in Wednesday’s ruling. “Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.”
The court urged the Legislature to change the archaic law to “correct the incongruity that exists when a man may commit rape ... when impersonating a husband, but not when impersonating a boyfriend.”
The justices noted that prosecutors advanced two legal theories — that the defendant raped by tricking the victim, which applies only to married women, and that he committed rape by having sex with a sleeping person.
Because it was unclear under which theory the jury convicted Morales, the court overturned the conviction. If Los Angeles prosecutors retry Morales, they may prevail only under the sleeping person theory and only if they prove Morales knew the woman was sleeping when he had sex with her, the court said.
Los Angeles prosecutors said they were reviewing the ruling Thursday and had not decided whether to retry Morales or appeal to the California Supreme Court. A spokeswoman for California Attorney General Kamala D. Harris said her office was also studying the decision and had no immediate comment.
An attorney for Morales said the appeals court decision was legally correct and speculated that the Legislature might change the law as a result.
Santa Clara University law professor Gerald Uelmen called the ruling “bizarre” and likely to spark outrage, but predicted that the California Supreme Court would probably not review it because it was legally sound.
“I think the ball is in the Legislature’s court,” he said.
Uelmen said he found it “ironic” that a judge had spotted the anomaly in the law 30 years ago, yet the Legislature failed to change it. The ruling indicated there was “pretty solid” evidence the woman was sleeping during the sex, “so this guy isn’t going to get off scot free,” the law professor said.
The appeals court relied on a criminal code enacted in 1872 that defined rape as an act of sexual intercourse “with a female not the wife of the perpetrator.”
The law was amended a couple of years later to specify that such sex would be rape if the victim “submits, under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.”
Wednesday’s ruling was written by Justice Thomas L. Willhite Jr., appointed to the appeals court by former Gov. Arnold Schwarzenegger, joined by Justices Norman L. Epstein, appointed by Gov. George Deukmejian, and Justice Nora M. Manella, another Schwarzenegger appointee.
“We reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person,” Willhite wrote in the precedent-setting decision.
The alleged rape occurred in February 2009, when an 18-year-old woman went to a party with her boyfriend. The woman’s brother and his friends, including Morales, also attended.
All of them returned to the woman’s house. She and her boyfriend went to bed but did not have sex. She fell asleep and the boyfriend left.
She said she woke up and realized that the man with her was not her boyfriend and began to yell and cry. Morales left, and she said she locked the door and called her boyfriend. He summoned police.
A sheriff’s deputy said Morales admitted that the woman might have been asleep and probably thought he was her boyfriend.
