Judges rule: if she had been married it would be rape.
The California Court of Appeals overturned a rape conviction earlier this week based on a controversial law from 1872 which does not protect women from rape when a man is impersonating her boyfriend, but instead only offers those protections to a married woman if the rapist is impersonating her husband the Huffington Post reports.
The panel of judges for the California appeals court has remanded the case for retrial, stating that prosecutors argued two separate theories and it was not clear if the original jury passed down the conviction based on the fact that the defendant, Julio Morales tricked the victim into thinking he was her boyfriend, or because the law defines having sex with a sleeping person as rape.
Although this would seem to be an entirely clear-cut case of rape, both because Morales initiated sex while the victim was asleep and because he was impersonating her boyfriend, Judge Thomas L. Willhite Jr. stated in the courts decision,
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.
So what it comes down to is less a question of whether or not Morales raped his victim, which he clearly did, but more his victim’s marital status. Although under state law he is not guilty of rape for impersonating the victim’s boyfriend, Morales is guilty based on the statutory definition of rape, for initiating intercourse while his victim was sleeping. The appeals court seems to have made its decision based on a very narrow interpretation of what the statutory definition of rape is, and being that it is now the 21st century, applying a law from the 19th century that so clearly discriminates between a person who is married versus a person who is not is, I would argue, a miscarriage of justice, if only because it is so clearly based on social norms that are now outdated?
Should the definition of impersonation rape be the same for both unmarried and married women?
Do you think the court was right in overturning the conviction based on such a narrow interpretation of state law?
Photo: Nigsby/Flickr
When I first read this I thought “Those Judges must be partaking in that ‘Medical Marajuana’ that’s so prevelent in the Golden State”. But, as they say in the NFL, upon further review, they were doing what they are supposed to do and in fact they did all in Calafornia a favor by exposing this arcane law. I’ve never been able to figure out why Legislative bodies don’t hesitate to pass new laws(even though some are poorly written) but really need to be pushed to repeal arcane laws that either haven’t kept up with changing times or were in fact… Read more »
There’s a story from decades ago that a SCOTUS justice was told to “do justice”. No, he said, I do the law.
We can’t have judges doing whatever they think is cool when we think it’s cool. Because when they think it’s cool and we don’t, we don’t have much of an argument.
That’s the legislature’s job. All you have to do is get their noses out of the trough long enough to talk to them and show them the potential voting patterns.
Impersonation rape? First time I’ve heard of that. Wouldn’t it be simply raping someone who was asleep or was it made for identical twins or something?
I just find it odd that to keep some subjects front and centre the focus has to become more extreme and left field. Of course it would not even be getting mentioned if it was her being sent for retrial for doing him! C’est la Vie!
Rape by fraud is a little known form of rape. The issue is, the sex is consensual, but the victim thinks she’s having sex with someone else. It’s rare but it happens. I recently read about a case where a man and his wife went to bed drunk, sometime later she was awakened by someone who she thought was her husband initiating sex, she let it happen, it was dark and she was drunk, then realized afterwards that it was actually an intruder in the house. Problem with proving rape by intoxication is that the intruder didn’t know she was… Read more »
Ah I see, figured it’d be something like that. I suppose it would be needed to differentiate consent people have for their partner and being mistaken in identity for another. Would this cover people who lie about their name, occupation, etc?
Apparently in Israel it covers people who use a Jewish name like Daniel despite being Palestinian: http://www.telegraph.co.uk/news/worldnews/middleeast/israel/7901025/Palestinian-jailed-for-rape-after-claiming-to-be-Jewish.html
No, it does not cover anything other than impersonating another person’s identity. As the case mentioned in the article shows, historically it only covered impersonating the woman’s husband. If you have sex because a guy lies to you about anything else, it sucks but it’s not a crime.
Sarah Rape by fraud is a tricky term. Having sex with someone by impersonating someone else is rape, especially when the victim is drunk or asleep. The scenario mentioned in this article is rape. However, “Rape by fraud”, is used to refer to a lot of other situations which are not technically rape. Here are 2 examples. In Israel a man was charged with rape because he lied to a woman about his religion. The woman had sex with him thinking he was a Jew, when in fact he was a Muslim. This was termed rape by fraud. In India,… Read more »
The 1st example would not be rape under U.S. law. I can’t speak for other countries. In the U.S., consensual sex is not rape except in a few narrow circumstances.
The 2nd example used to be considered a tort under British/American law called “seduction.” The woman could sue for damages. I don’t think it was a crime. It is no longer a recognized tort.
I believe Frank Sinatra wound up in jail briefly in the 1940’s under the “seduction” statute. That’s where the famous mug shot of him comes from. (On a poster behind Tony Soprano’s desk, for example.)
Sarah Rape by fraud is a tricky term. Having sex with someone by impersonating someone else is rape, especially when the victim is drunk or asleep. The scenario mentioned in this article is rape. However, “Rape by fraud”, is used to refer to a lot of other situations which are not technically rape. Here are 2 examples. In Israel a man was charged with rape because he lied to a woman about his religion. The woman had sex with him thinking he was a Jew, when in fact he was a Muslim. This was termed rape by fraud. In India,… Read more »
The appeals court seems to have made its decision based on a very narrow interpretation of what the statutory definition of rape is, That is the role of the appellate court as it has evolved in our 1,000-year-old common-law legal system. I don’t have time to write a comprehensive treatise on the history and philosophy of law, so the highly-abbreviated version is this: Based on that common-law legal tradition, the constitution of the state of California vests the power to enact, amend and repeal statutory law solely in the state legislature, and the statutory law binds the courts. The courts… Read more »
Totally agree (lawyer here). The court must apply the law. This “loophole” requires a legislative fix.
Exactly right. This isn’t a story about a court saying a woman wasn’t raped because she wasn’t married. It’s a story about a stupid, archaic law being exposed, so now the legislature should act to amend it. Meanwhile, the case is remanded, so even with the bad law still on the books, the result wasn’t acquittal for the defendant.
I am not particularly outraged by this ruling. The accused has not been acquitted. The case is being remanded and he will be tried again and the law, hopefully, will be appropriately applied and if the facts fall within the purview of the law the accused will be convicted and he will be appropriately sentenced and be removed from society and not be a threat to others. I represented a man who was wrongfully convicted of rape and who spent 12 years in prison before DNA evidence exonerated him. As has been said in the law, it iis better that… Read more »
The Appeals Court here is just trying to have the law applied appropriately. I am happy to hear that.