Julio Morales' Sex With Sleeping Woman Not Rape Because She Wasn't Married

The victim's version:

According to Jane, she woke up to the sensation of having sex. She was in a different position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house.

Morales' version:

He thought she was attractive, so he kissed her on the cheek. She turned toward him, and they kissed some more. He thought she was not asleep because she responded to his kisses, but he also thought she believed he was her boyfriend. They kissed for several minutes, and he became aroused. He began to take her pajamas and underwear off, and she lifted her hips to help him. He unbuckled his belt, pulled down his pants, and began to have sex. He stopped because he felt he was betraying his girlfriend; he did not recall Jane pushing him away, and he did not try to reinsert his penis after he pulled out of her.

When he went to leave the room, it felt like someone was holding the door shut. He finally was able to open the door, and he saw his friend Tony standing outside, laughing.

Rape ruling by California Second District Appeals Court

In distinguishing impersonating a husband versus a boyfriend, the court cited a previous California ruling that states:

[a]ny person who fraudulently obtains the consent of another to sexual relations escapes criminal liability (at least as a sex offender under tit. IX of the Pen. Code), unless he (or she) ... masquerades as the victim‟s spouse ...

Yet another ruling cited said impersonating a husband is "fraud in the fact." Impersonating a boyfriend ... not so much, apparently.

The court said it was bound by the letter of the law, which dates to ... 1872. In fact, California's original such rule defines rape as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator under any of six circumstances," according to the court's reading.

One of those circumstances, specifically, is "[w]here she submits, under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief."

The court notes that, despite numerous amendments, that language "remained unchanged."

Yep.

(Spousal rape would hit the books years later).

The court says:

... 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 section 261, subdivision (a)(4).

Morales, who was convicted during a second trial (the first ended in a hung jury) and already served his time, three years, is getting a new trial.

See also:
*Law That Allows Unmarried Women To Be Raped Will Be Fixed, Says Jimmy Gomez.

[@dennisjromero / djromero@laweekly.com / @LAWeeklyNews]