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California Appeals Court Rules Sex by Impersonation Is Not Rape When the Woman Is Unmarried

A defendant who admitted to police that the woman he awakened for sex likely mistook him for her boyfriend is not guilty of rape based on a trickery theory, a California appeals court has ruled.

In a decision (PDF) issued on Wednesday, California’s Second District Court of Appeal said sex by impersonation is not rape when the woman is unmarried, the Recorder reports. The court outlined the issue this way: “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.”

The defendant, Julio Morales, was among a group of people who attended a party with the woman and her boyfriend. The group returned to the woman’s home, where she fell asleep in her dark bedroom. After her boyfriend left, the defendant entered the room and began having sex with the woman. She said she yelled and tried to push Morales away when she realized he was not her boyfriend.

Prosecutors had argued Morales was guilty under a law barring the rape of an unconscious woman under two theories. One theory was that the act was a rape because the woman was asleep, and the second was that the act was a rape because the woman was unaware of the nature of the act based on a lie or trickery. The second theory cannot support a rape conviction, the court said, and Morales may be retried only on the theory that the woman was asleep.

The appeals court noted a provision of California law that makes sexual intercourse by impersonation a rape, but only when the victim is married and the perpetrator impersonates the victim’s spouse. The court said it was bound to interpret the rape law in a way that does not render the provision superfluous. “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.”