Associated Press via San Jose Mercury News - Friday, November 4, 2103

California court overturns rape conviction because victim was unmarried, urge law change

LOS ANGELES -- California appellate judges urged legislators to update an arcane 19th century law, as the panel reversed the rape conviction of a man who authorities say pretended to be a sleeping woman's boyfriend before initiating intercourse.

The Los Angeles-based appeals court said that the 1872 measure doesn't give single women the same protections as their married counterparts in certain rape cases.

Julio Morales had been convicted and sentenced to three years in state prison, found guilty of entering a woman's bedroom late one night once her boyfriend had gone home and initiating sexual intercourse while she was asleep, after a night of drinking.

But a panel of judges overturned the trial court's conviction and remanded it for retrial, in a decision posted this week.

The victim said her boyfriend was in the room when she fell asleep, and they'd decided against having sex that night because he didn't have a condom and he had to be somewhere early the next day.

Morales pretended to be her boyfriend in the darkened room, and it wasn't until a ray of light from outside the room flashed across his face that she realized he wasn't her boyfriend, according to prosecutors.

"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," Judge Thomas L. Willhite Jr. wrote in the court's decision.

The appeals court added that prosecutors argued two theories, and it was unclear if the jury convicted Morales because the defendant tricked the victim or because sex with a sleeping person is defined as rape by law.

The court said the case should be retried to ensure the jury's conviction is supported by the latter argument.

The decision also urges the Legislature to examine the law, which was first written in response to cases in England that concluded fraudulent impersonation to have sex wasn't rape because the victim would consent, even if they were being tricked into thinking the perpetrator was their husband.

Willhite noted that the law has been applied inconsistently over the years in California.

In 2010, a similar law in Idaho prevented an unmarried woman from pressing rape charges after being tricked into sex with a stranger by her then-boyfriend.

The judge called what happened "despicable" but said the state's law left the court with no choice. Idaho's law was amended to cover all women in 2011.

Morales' attorney Edward Schulman declined comment when reached by phone Thursday.

Prior to the conviction, Schulman had argued Morales believed the sex was consensual because the victim responded to his kisses and caresses, according to the decision.

At first blush, the conviction should not stand.
The law needs to be changed but until then...

A lawyer who did his homework properly?

Chaos, since this decision is at the appellate level, I'm guessing the defense cited this antiquated law when it appealed ~ I read something yesterday that this antiquated law is now at or near the top of the Cali legislature's docket ~ the good news here is that the appellate court did not just kick the case, but instead remanded it for retrial ~

Sooz

Shouldn't make a difference in this particular case since laws cannot be made retroactive.
IMO, the only way to get the conviction would be to challenge the "antiquated" law's constitutionality.

I hope this rapist is not on the streets awaiting a new trial.

I'll bet this ruling gets overturned on appeal to the California Supreme Court. Rape is performing unwanted sex acts on another. I would think that using trickery would still qualify.

What does the law say?
If there are contradictory laws then there should be no conviction regardless of intent.

The most current law would be the applicable one.

Not necessarily.
Apparently the court disagrees with you.

I wonder if the the prosecutor picked the wrong section of the rape law to prosecute the guy under. It seems to me there's plenty of sections of the law that would have made conviction a slam dunk:

http://www.ucdmaar.org/definition.htm

Actually, what I stated is correct. If there are conflicting laws, the most current law always has effect. New laws are made everyday, and the old laws are not declared void. The old law de facto becomes void by virtue of the new law taking effect.

What this judge has said is that the most current law allows what happened because there not a more current law.

However, that's only one judge's opinion and ruling. If all judges always rendered the correct decision, there wouldn't need to be an appeals process. Nor would there be a need for the two opposing sides to argue their case since the judge could simply look up the answer for the governing law.

We also have to look up what the legal definition of "consent" is. If one is tricked into doing something, have they really given their consent? For instance, if one is tricked into signing a contract or agreeing to do something, the party tricked can have that contract declared null and void.

Her story is she pushed him away, he forced himself into her again, when she yelled, he fled. How is this not rap?. He admitted he knew she thought he was someone else, why is his story about if he penetrated her again worth anything?

Until there is a new ruling the current one stands.
It may change and it may not.
I've not said otherwise.

Here is the California Penal Code, Section 261-269.

http://www.leginfo.ca.gov/cgi-bin/displ ... le=261-269

In my opinion (and if I were the victim's attorney, I would argue that) what this guy did would be rape under current law.


He perpetrated fraud, and the victim was not aware, knowing, perceiving, or cognizant of it.

I'm very happy this is being addressed so quickly ~ and equally happy that the bill sponsors are a D and an R, which gives me great hope this will not morph into a false partisan dialogue ~ Sooz

California Lawmakers Introduce Bill To Close Loophole In Rape Cases
By Rebecca Leber on Jan 11, 2013 at 10:10 am

Last week, a California appeals court overturned a man’s conviction for rape of an unconscious woman because she was unmarried. According to the court, under the 19th century-era law, someone is prohibited from impersonating the woman’s husband for sex, but not from impersonating a boyfriend.

California Assembly Speaker John A. Perez (D) and member Katcho Achadjian (R) have introduced legislation to address this loophole, after a similar bill died in committee last year. The bill would expand this outdated definition of rape to include cases involving unmarried women or men.

http://thinkprogress.org/justice/2013/01/11/1425721/california-lawmakers-introduce-bill-to-close-loophole-in-rape-cases/

By closing that "loophole" legislators are recognising that there is a "loophole" and that, in all likelihood the current decision will stand.