News California Plugs Rape Law Loophole

California lawmakers closed a rape law loophole and have now made it illegal to impersonate another person in order to have sex, whether or not the victim is married. California Governor, Jerry Brown, signed bill AB65 after an appellate court overturned a rape conviction because the impersonated man was not the victim's husband.

law-book-gavel.jpgThe California state law, which dates back to 1872, made it illegal to impersonate the spouse of a married person - which does not include a boyfriend or girlfriend. Julio Morales was originally convicted of allegedly raping an 18 year old woman who had fallen asleep in her bedroom after a night of drinking and partying with her boyfriend, Morales and several other people. After her boyfriend left the premises, Morales allegedly entered the woman's dark bedroom and, without speaking, misled her as to his identity after she had awakened and had sex with the victim. The woman, identified as "Jane Doe", claimed that she had awakened to find Morales already in the act. Jane realized the man's identity after capturing a glimpse of Morales' face in the light.

California's Second District Court of Appeals granted a retrial as a result of the California Penal Code considering a crime to be rape only if the victim was (1) unconscious or asleep or (2) "submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief." Since Morales did not pretend to be the young woman's husband and only her boyfriend, the crime could not be classified under the crime of rape under the second definition of rape.

The issues discussed in the appeal mention the difficulties that prosecutors had in convicting Morales of a rape crime. One essential element was whether the woman was asleep at the time of the crime, which was debated at trial. While both theories were presented to the jury, the court could not determine whether the jury relied upon the correct theory (that the rape victim was asleep) or had used the second legally incorrect theory (of impersonating a woman's spouse) in order to convict the defendant.

In the opinion of the California Second District Court of Appeals, the court summarized its decision as follows:

"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."
Legal Practice
Crime - Sex Crimes
  1. California
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Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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