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In California, Only Married Women Can Be Raped

Okay, not quite true — but apparently only married women can be raped by impersonation. That’s the ruling of a California state appeals court in overturning the conviction of a man who had sex with a sleeping woman who thought he was her boyfriend.

After a party, the victim and her boyfriend were in bed. The boyfriend had to be up early in the morning, so he went home and the woman fell asleep. Sometime during the night, Julio Morales climbed into bed with her and began having sex with her. She was facing away from him and assumed it was her boyfriend, until she saw his face and began to scream. He was convicted of rape but the appeals court just overturned that conviction because, under a 19th century law, only married women can be the victims of rape by impersonation:

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. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no …If the woman had been married and the man had impersonated her husband, the answer would be yes.

The appeals court judge apparently didn’t want to render that verdict but felt his hands were tied by the text of the law and he urged the legislature to change the law. They damn well should. What this man did was rape and he should be in prison. I continue to be appalled by how unseriously this society takes the matter of rape.

Comments

  1. says

    The courts could have — and I would say should have — ruled that the extant law was a clear violation of established rights and thus invalid.

    Sounds to me like the court was not all that reluctant to render the verdict it did.

  2. BradC says

    The only good news about this ruling is that it isn’t overturning the conviction altogether, it is sending the case back to be re-tried on the merits that she didn’t consent because she was unconscious (which should still result in a conviction, he has apparently admitted to the details of the case).

    But yes, the CA legislature needs to get the law straightened out pronto.

  3. Sastra says

    The underlying rationale behind the 19th century law was what? That a woman who knowingly commits fornication no longer has a right to say ‘no’ to any man? Or that any man is justified in believing that a fornicating woman is free to all and any? Or some other horrible possibility?

  4. valhar2000 says

    Could the judge have refused to apply this law on the grounds that it is unconstitutional, or something broadly similar?

  5. valhar2000 says

    That a woman who knowingly commits fornication no longer has a right to say ‘no’ to any man?

    Probably.

  6. says

    Silver lining: he did serve the full 3 years of prison time for the original rape conviction. The only thing officially affected by this ruling is that he doesn’t have to report as a sex offender. California legislators are already working to fix this loophole. I suggest they name this law after him. Any time someone is on trial for rape by impersonation, call him (or her) a Morales rapist. Keep the spotlight shining on this cockroach.

  7. says

    @1 & 4: The judge can’t rule the law unconstitutional here. That only works one direction. It can make people not guilty instead of guilty, but not vice-versa. The courts can’t say that what you did was perfectly legal under current law, but it shouldn’t be, so you’re going to jail. If the law were ruled unconstitution because it violated equal protection, that would mean rape by deception isn’t illegal at all until an equitable version is passed, not that criminal sanctions would be expanded.

  8. kenbo says

    I will take a stab at the rationale for the law written as it is…an unmarried woman at the time the law was written would have been expected to stop the act immediately, not play along with it until she discovers she is not having sex with her “boyfriend”…she is not supposed to have premarital sex at all, so she should resist immediately.

    A married woman, on the other hand, might actually be “fooled” into having sex with another man because she is supposed to service her husband on demand. Remember, at this time, a woman could not be raped by her husband, only someone posing as her husband would be considered rape.

    Note that I don’t agree with the above, just positing why it might have been written this way.

  9. dingojack says

    “That a woman who knowingly commits fornication…”

    If a woman, or a man for that matter, knowingly commits a fornication*, doesn’t that imply consent or at the very least a understanding of the events that are occurring.?
    (In this case the victim didn’t knowingly do anything at all, she was asleep at the time. The perp on the other hand…).
    DIngo
    ——-
    * or a crime, say murder, assault or fraud

  10. Sastra says

    @ dingojack #9:

    The consensual “knowing fornication” is with her boyfriend. I was awkwardly trying to refer to the fact that the woman was a fornicator. She “thought” it was her boyfriend! Gasp!

  11. eric says

    @3 – the old law basically says that if you deceive someone about what you’re doing, that’s criminal. If you do not deceive them about what you’re doing, but only who’s doing it, that’s not criminal (though it may be a civil matter). Here’s a quote from the ruling:

    The distinction between fraud in the inducement and fraud in the fact is an important one. “Fraud in the fact occurs when the defendant obtains the victim‟s consent to perform one act, but instead engages in another act. [Citations.] In that situation, consent is absent, . . . because the victim never agreed to the particular act complained of. [Citation.] [¶] By contrast, fraud in the inducement takes place when the defendant makes misrepresentations to the victim in order to gether consent for a particular act, and then proceeds to carry out that very act.[Citations.] In that situation, courts have historically been reluctant to impose criminal liability on the defendant since the victim consented to the particular act performed, albeit under false pretenses. [Citation.]” (People v. Pham (2009) 180Cal.App.4th 919, 925; see also People v. Babaali (2009) 171 Cal.App.4th 982,987-988.)

    However, reading the whole ruling it seems to me that the judge could have probably ruled in the woman’s favor, and just chose not to. The judge himself cites multiple precedent cases where earlier courts ruled that a “fraud in the inducement” could be punished. He also states outright that it is perfectly reasonable to interpret the current law (“To prove that the defendant is guilty of this crime, the People must prove that…The woman was unable to resist because she was unconscious of the nature of the act;”) to mean that “nature of the act” includes the person doing it. He goes on to say that he rejects all the precedents that support the woman’s case and rejects this reasonable interpretation because it was probably not the original intent of the legislators who drafted the law.

    Now, that doesn’t really sound to me like a jurist whose hands were tied. It sounds more to me like he chose to favor originalism when precedents were ambiguous and a common-sense view of the law clearly favored the victim.

    Anyway, folks should scan the ruling before deciding whether the judge was just doing his job or had a choice in the matter. To me, it does not appear at all to be the case that the law fell all on one side and that the only solution is to change the law.

  12. kosk11348 says

    The underlying rationale behind the 19th century law was what? That a woman who knowingly commits fornication no longer has a right to say ‘no’ to any man?

    Yeah, I think the rationale was that an unmarried woman has no business ever saying ‘yes’ to a man.

  13. Nick Gotts (formerly KG) says

    In the UK, there have been scandals recently about undercover male police officers, using false identities and working long-term within non-violent but civilly disobedient pressure groups, having sexual relationships with women who believed them to be fellow-activists – in at least one case, resulting in the birth of a child. The question has been raised as to whether the sex that occurred within these relationships was rape, although as yet only a civil case has been launched – with the police trying to have the claims tried in secret by a special court. Morally, I’ve no doubt these were cases of rape. The Commissioner of the Metropolitan Police, Bernard Hogan-Howe made clear his dishonest and deeply misogynist attitude to these cases when questioned by a Parliamentary Committee.

  14. sinned34 says

    See, now if Biblical law were enforced, the criminal would have to pay 30 pieces of silver (or whatever that converts to in US dollars. I can’t seem to find it on any currency conversion websites) to the father of the victim, and then the perpetrator and the slut could spend the rest of their lives together in wedded bliss.

    Family values!

  15. says

    @15

    Well, let’s have a screwily precise reasoning from that, shall we?

    According to Wikipedia, the Biblical ‘pieces of silver’ were (most likely) Tyrian shekels. Since this is from before fiat money, the value of each coin was literally its physical composition, roughly 0.5 troy ounces per coin. According to silverprice.org, the market price per troy ounce of silver is USD 30.32, so thirty pieces of silver (the price for one woman or, apparently, one Messiah betrayal) would be 30 * 0.5 * $30.32 = $454.80, or roughly one week’s gross minimum wage in a major urban center.

    Wikipedia says that in Biblical times, 30 Tyrian shekels was about 4 months’ pay for skilled labor. It seems that the price of misogyny and betrayal has suffered some inflation over the last couple of millennia.

  16. Karen Locke says

    I heard this on the local news radio the other day (I live in Northern California). I gathered that our Democratic legislators are falling all over themselves trying to be the first to introduce a bill that will fix this loophole; with Dem supermajorities in both houses, it will pass quickly.

  17. Sastra says

    The other day on Netflix I watched one of those true-crime docu-dramas about a Miami woman who had married a man who turned out to be a Cuban spy. According to the show, the abandoned wife went to court and successfully sued the Cuban government for rape. He had seemed a kind and loving husband, but apparently the spy had only married her as part of his cover — and her argument was that therefore she did not give her informed consent for marital relations. Cuba had ordered her rape.

    Although the court decreed that Cuba now owed her several million dollars, she’s still waiting to collect it.

  18. DonDueed says

    Holy crap, I just realized something. Revenge Of the Nerds includes a scene of rape by impersonation… by the protagonist!

  19. dingojack says

    Nick – hmmm…. So if you told a women (or a man, if that’s your preference) that you were really, really rich and (s)he agreed to have sex with you, then when (s)he found out you weren’t really, really rich and tried to sue you for rape, as your defense council I’d be asking the complainant a couple of questions:

    a) So you only consented to have sex with my client because he claimed he was rich?
    b) What exactly did you expect to get out of the relationship?
    and
    c) Did you use the threat of legal action to in an attempt to obtain payment for said sexual act(s)?

    Dingo
    ——–
    As you can see by the above leading questions, IANAL
    OBTW – Since, in the case you cited above, a child was involved then child support is a no-brainer, but rape…

  20. says

    @dingojack: Generally only impersonating someone will get you a rape by deception charge, not lying and claiming to be a doctor or something. From a legal standpoint, these cases are questionable.

  21. =8)-DX says

    I don’t think Nick’s case fits the definition of rape – if the women gave consent, it’s more a case of fraud, similar to what used to be the issue of marital fraud (promising someone you’d marry them and lying about being in love in order to get them to have sex and lend you money). Reading the articles it looks like there was also emotional abuse going on (since the officers terminated any contact with their “girlfriends” after being re-assigned) which should be taken to court, but for it to be rape there would have to be some position of authority? Some kind of coercion? Legally I guess it depends on what is permissible for an undercover detective (are there “no sleeping with contacts” rules?)

    Not so long ago wasn’t there a case of an Israeli woman trying to get a man she slept with prosecuted for rape because he didn’t mention to her he was a Palestinian (and therefore Muslim and therefore icky horrible, never touch the thing)?

  22. =8)-DX says

    @Ace of Sevens
    >>From a legal standpoint, these cases are questionable.

    From the articles it looks like they are going for “invasion of privacy” and “serious emotional and psychiatric harm”. They should have standing there, surely?

  23. bradleybetts says

    @Nick Gotts #14

    I’m not sure that is rape. Essentially what they did was claim to have the same political ideals as the woman and then sleep with her. Which is no different to lying about the sort of music you like in order to get a girl into bed. Immoral, certainly, and I sincerely hope that they lose their jobs, but I don’t think it counts as rape.

  24. eric says

    Dingo @20 – you are somewhat mixing together civil and criminal proceedings. The woman can still sue the accused, even now, for damages. The judge’s ruling doesn’t prevent that. The outrage here is about criminal law. A win in a civil suit would not send the guy to jail, or get him on the sexual predator list. Only the state, prosecuting him for committing a crime, can do that.

  25. yaque says

    I very vaguely remember a case were two people were locked in a museum or something all night.
    By morning, they had had sex, voluntarily.
    But then the woman found out that the guy had had a key all the time and complained of rape.
    The case might be fictional for all I remember, but it’s an interesting problem, one I’m of two minds about.

    According to this thread, it’s probably fraud, but not “legitimate” rape (gack!).
    I’m inclined to call it rape, depending on how pressured or claustrophobic she felt.

    In any case, this is a definite “guys, don’t do that”.

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