It Is Rape Only If You Are Married.

She thought attacker was her boyfriend, but court says 1872 impersonation law applies only to married women.

(Photo: Robyn Beck, AFP/Getty Images)

A Los Angeles-based state appeals court recently overturned a the conviction of a man who raped a woman in her sleep. The victim, who at first thought the man was her boyfriend, tried to stop him once she regained consciousness enough to realize he was an imposter.

However, because the woman and her boyfriend are not a married couple, her rapist will walk away without penalty. The court said that its decision is based on an 1872 California law stating that tricking a victim into sex by impersonation counts as rape only if the victim is married. This is a ridiculous law that should to be changed.

Because a 19th-century state law does not explicitly protect unmarried rape victims from attackers pretending to be a boyfriend, a California appeals court Thursday overturned a man's conviction for having sex with a sleeping woman.
The 2nd District Court of Appeal in Los Angeles ordered a new trial for Julio Morales, who was convicted of raping a friend's 18-year-old sister in Cerritos after a party in February 2009. He was sentenced to three years in prison.
Here's how the court's opinion, which includes details of the encounter, framed the case:

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, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.

Morales' first trial ended in a hung jury. Jurors in the second trial convicted him of rape of an unconscious person after prosecutors told them they could find him guilty under two conditions: either the victim was sleeping, unconscious or not able to refuse sex, or else the attacker misled her or lied about his identify. Under California law, however, impersonation applies only if a woman is married.
The three-judge appellate panel reversed the conviction, saying it "cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory."
The opinion states that the law allows the "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."
"Therefore, 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" under a provision of state law, Justice Thomas Willhite wrote for the panel.
The justices noted that state courts "have been inconsistent when characterizing sex crimes involving impersonation" and that "there appears to be little discussion in the legislative history" about what the Legislature really intended.
For a report with a little more attitude, see the LA Weekly.
Friday, a state lawmaker said he would reintroduce legislation next week to expand the 1872 law to protect unmarried women or men who do not live together.
"Californians are justifiably outraged by this court ruling, and it is important that the Legislature join together to close whatever loopholes may exist in the law and uphold justice for rape victims," Assemblyman Katcho Achadjian, a Republican from San Luis Obispo, said in a news release.
The state Assembly passed his measure last year but it died in the Senate Public Safety Committee.