On Thursday, the 2nd District Court of Appeals in Los Angeles overturned the conviction of a man charged with having sex with a sleeping woman while impersonating as her boyfriend. Julio Morales was convicted of raping the 18-year old sister of a friend and was sentenced to three years in prison.
The circumstances of the case show that Morales had entered the bedroom of the victim in the dark, after watching her boyfriend leave, and the sleeping victim either was not in a position to refuse sex, or mistook Morales as her boyfriend.
And this is where the courts in California found themselves tripping up over the complexity, or may be “complicity” of law – for in this instance, California law says if an unmarried woman has sex with a person under the assumption that it is her boyfriend – then there is no rape. Such rape can only happen if the woman was married and a man impersonating her husband.
The first trial of Morales resulted in a hung jury. In the second trial, the jurors convicted him of rape of an unconscious person based upon the assumption, that either the woman was unconscious and sleeping – so unable to refuse sex, or she was under the assumption that Morales was her boyfriend.
The conviction was reversed by the three-judge appellate panel as it could not “discern from this record whether the jury convicted defendant on the correct or incorrect theory.”
The opinion also observes that there is a “continued existence of a separate provision that expressly makes sexual intercourse by impersonation a rape, albeit only when the victim is married and the perpetrator impersonates the victim’s spouse.”
Noting that the state courts “have been inconsistent when characterizing sex crimes involving impersonation” the court observed, “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.”
The reasoning framed by the panel while reaching its conclusion observes, “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.”