Rape by Trickery Not Really Rape, According to CA Court

By Corey Licht, Esq. on January 04, 2013 | Last updated on March 21, 2019

A man sneaks into a woman's bedroom after seeing her boyfriend leave for the night. He then has sex with the woman while pretending to be the boyfriend. Is it rape?

No, according to California's Second District Court of Appeal. Although, the answer would probably be yes if the woman was married.

Defendant Julio Morales went to a party with a group of people that included the victim, referred to as Jane Doe, and her boyfriend. After the party, the group headed back to Jane's home, where she fell asleep in her bedroom.

After Jane's boyfriend left the home, Morales, a friend of Jane's brother, reportedly entered her bedroom. In the dark, Morales allegedly removed Jane's clothing and began having sex with her while she slept.

Jane woke up during the act and realized it wasn't her boyfriend when light coming through a crack in the bedroom door illuminated Morales' face, according to prosecutors. She screamed, causing Morales to flee.

Morales was convicted under section 261(a)(4). According to the provision, a person who has sex with someone who is "unconscious to the nature of the act" has committed rape.

Prosecutors argued that Morales was guilty of rape under two theories. Under the first theory, the act was rape because the victim was asleep or unconscious at the time of the incident. Under the second theory, the act was rape because the victim was unaware of the nature of the act due to trickery or lies.

While the appellate court found the first theory to be sound, it took issue with the second. The court noted that when section 261 was first codified in 1872, a provision was included, specifically making sex by impersonation rape, but only in cases where the defendant impersonates the victim's spouse. That provision, section 261(a)(5), hasn't been altered since.

In looking at statutory construction, the appellate court noted that "courts are 'exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary," as was stated in People v. Olsen. The court reasoned that an interpretation of section 261(a)(4) that included sex by impersonation would render subdivision (a)(5)'s inclusion of spousal impersonation unnecessary.

The court, therefore, "reluctantly" held that a person who "accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of rape of an unconscious person."

Since the record failed to disclose under which theory -- either the valid "sleeping" theory or the invalid "trickery" theory -- the jury convicted Morales, the conviction was reversed. Morales could be retried only on the "sleeping" theory, according to the court.

California legislators, it's your move.

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