Man Admitted Tricking Woman into Sex — Not Rape in California, Says Court

The Second District Court of Appeal of the State of California in a ruling released Wednesday said that, “because of historical anomalies in the law and the statutory definition of rape,” rape was not committed by a man who had sex with a woman by knowingly tricking her into thinking he was her boyfriend. According to records of the case (People v. Morales), a woman, referred to only as Jane Doe, returned home from a party with her boyfriend, her brother and several of her brother’s friends, including defendant Julio Morales. The woman and her boyfriend went to bed, talked about having sex, but decided not to, because the boyfriend then had to leave early and also because he did not have a condom and they never engaged in unprotected sex. After the boyfriend departed and Jane Doe had fallen asleep, Morales entered the darkened bedroom and began having sex with her. When Doe realized she was having sex with someone not her boyfriend, she pushed Morales away and police were called. While in custody, Morales admitted that he had gone into Jane Doe’s room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and started to have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming. He was charged with rape. At trial, prosecutors argued that either Jane Doe was asleep, or “was not aware of the essential characteristics of the act” because of Morales’ trickery and that “that’s an essential detail, to know who it is you’re having sex with.” Before closing arguments, Los Angeles Superior Court Judge Robert Higa gave the jury instructions that included California Criminal Law (CALCRIM) No. 1003, concerning the rape of an unconscious person. Jurors were told that “[a] woman is unconscious … if she is … asleep … or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” The jury found Morales guilty. On appeal, Morales claimed that the lower court judge erred when he instructed the jury that it could convict based on the defendant’s alleged concealment of his identity. The appeals panel agreed, saying that under “the peculiar facts of this case,” reversal was necessary because the justices could not tell whether the jury had convicted Morales because the victim was asleep—a correct theory—or that Morales had concealed his identity—an incorrect one. Justice Thomas Willhite Jr., who penned the ruling in behalf of the court said, “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 [under the specified code section]. The prosecutor argued this precise theory to the jury, and CALCRIM No. 1003 as read to the jury in this case allowed the jury to convict defendant under the theory that he impersonated Jane’s boyfriend.” Accordingly, the lower court judgment was reversed and the matter remanded for a retrial, with directions to the trial court, when instructing the jury, to omit from CALCRIM No.1003 the phrase: “or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” Justice Willhite also urged California’ state Legislature to “correct the incongruity that exists when a man may commit rape by having intercourse with a woman when impersonating a husband, but not when impersonating a boyfriend.”