Dumb California Law: It's Not Rape Unless Rapist Poses as Husband

On occasion you hear about those laws that remain on a state's books but which are obsolete because they are outdated or no longer relevant. Things like "In Kentucky, 'No female shall appear in a bathing suit on any highway within this state unless she be escorted by at least two officers or unless she be armed with a club,'" or some other such silliness. Often such laws make for a good laugh as you read them to each other at parties or other social gatherings.

Apparently, California judges pulled an arcane 19th century law from the dust heap two days ago, on January 2, when they made a controversial ruling in a rape case. Here are the essentials of the story:

Julio Morales had been convicted and sentenced to three years in state prison, found guilty of entering a woman's bedroom late one night once her boyfriend had gone home and initiating sexual intercourse while she was asleep, after a night of drinking.

But a panel of judges overturned the trial court's conviction and remanded it for retrial, in a decision posted this week.

The victim said her boyfriend was in the room when she fell asleep, and they'd decided against having sex that night because he didn't have a condom and he had to be somewhere early the next day.

Morales pretended to be her boyfriend in the darkened room, and it wasn't until a ray of light from outside the room flashed across his face that she realized he wasn't her boyfriend, according to prosecutors.

"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," Judge Thomas L. Willhite Jr. wrote in the court's decision.

The appeals court added that prosecutors argued two theories, and it was unclear if the jury convicted Morales because the defendant tricked the victim or because sex with a sleeping person is defined as rape by law.

The court said the case should be retried to ensure the jury's conviction is supported by the latter argument. The reversal of the rape charge is based on a law in the California penal code that states: "any 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." Morales claimed that the woman consented because when he kissed her initially, she kissed him back. Only when she saw that he was not her boyfriend did she object. Because the prosecutor did not make it clear that the charge of rape was based on the woman being asleep when she was molested, the appeals judges could not uphold the conviction.

The man is likely to be retried if it is determined that double jeopardy does not attach.

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