WASHINGTON DC, January 10, 2013- Last week a California court of appeals in Los Angeles overturned Julio Morales’ rape conviction. The issue? The woman he allegedly raped was not married and therefore not raped under California’s current laws.
In the opening words of the opinion: “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 her boyfriend. 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.”
How does something like this happen? What are the “historical anomalies in the law” that force this kind of an outcome? To understand why the California court ruled this way, it is important to understand the statutory definition of rape in California and the concept of statutory construction.
Julio Morales was accused of raping an 18-year-old victim while she was asleep in her bed.
According to the facts of the case, the victim and her boyfriend attended a party where they had engaged in drinking. The boyfriend left the victim’s house after she fell asleep in her bedroom. Morales, a friend of the victim’s brother, then went into her room and proceeded to have sex with her, at which time she awoke and pushed him off. There is conflicting testimony about what happened next. Morales did, however, confess that the victim was asleep when the intercourse began and that she may have thought that he was her boyfriend.
Morales was charged under California Criminal Code Section 261 (a)(4). Under this provision, rape is defined as sexual intercourse with someone who is “unconscious.” Among other circumstances, a person is “unconscious” if the person is either (1) asleep or (2) “not aware… of the essential characteristics of the act.”
Los Angeles county prosecutors charged Morales with rape of the victim under both parts of the section mentioned above: the victim was “unconscious” because she was asleep, and because she believed that Morales was her boyfriend, an “essential characteristic of the act.” The jury convicted Morales and he was sentenced to three years in prison. The jury did not state whether they convicted Morales based on the victim being asleep or believing that Morales was her boyfriend.
In a stunning reversal, Morales’ conviction was overturned last week on appeal because, according to the appeals court, “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 under section 261…”
Why did the Court rule this way?
According to the opinion, a juror could find that “someone who accomplishes an act of sexual intercourse by impersonating a victim’s lover is guilty of rape of an unconscious person regardless of the victim’s marital status.” But, the Court said, this was not a correct interpretation of the law, and required a reversal of Morales’ conviction.
In handing down its ruling, the Court said it was “constrained by the principles of statutory construction.” Codified in 1872 and remaining generally unchanged, Section 261 also contains another provision, (a)(5), that defines rape as impersonation of a spouse. The Court argued that it was bound by the rules of statutory construction to conclude that there was no protection for an unmarried woman when the alleged rapist impersonated a boyfriend or lover. The Court explained that, by creating a provision that specifically protected women from men impersonating their husbands, the 1872 legislature intentionally excluded protection for unmarried women in a similar situation under Section 261.
Further, since it was unclear whether the jury convicted Morales for having intercourse with the victim while she was asleep (which was a correct theory of the law) or by impersonating her boyfriend (which was an incorrect theory), the court reversed Morales’ conviction and remanded for a new trial to determine whether Morales had sexual intercourse with the victim while she was asleep.
The Court stated that it regretted such a finding, and urged the legislature to close this loophole in the law. The Court also noted that it is not the first to point out this “obvious and serious oversight” in the Penal Code. As early as 1981, in a concurring opinion in Matthews v. Superior Court, Acting Presiding Justice Paras noted that “[a]ny person who fraudulently obtains the consent of another to sexual relations escapes criminal liability…unless he (or she) either masquerades as the victim’s spouse… or offers marriage in exchange for sexual favors from ‘an unmarried female of previous chaste character.’”
This victim is not the first woman who has been left unprotected by California’s rape laws. Last year, a man entered a woman’s bedroom in Santa Barbara. Thinking the man was her boyfriend, the woman initially consented to sex. When the victim realized he was not her boyfriend, the woman resisted and the man fled. Even though this was clearly rape, the district attorney was unable to prosecute.
The Santa Barbara case prompted introduction of legislation that would close this gaping loophole in the law, but after gaining State Assembly approval, it was held up in the California Senate Public Safety Committee. As outrage over this latest ruling rises, California lawmakers have announced that they will reintroduce the legislation.
Meanwhile, unmarried women are left unprotected by California’s arcane rape statute, and rapists could manage to escape justice through a loophole that the California legislature seems inexplicably reluctant to close.
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