SAN FRANCISCO A man who tricked a woman into thinking he was her boyfriend did not commit rape by having sex with her, the Second District Court of Appeal ruled Wednesday in an early candidate for weirdest fact pattern of 2013.
"Because of historical anomalies in the law and the statutory definition of rape," Justice Thomas Willhite Jr. wrote, sex-by-impersonation is not rape, "even though, if the woman had been married and the man had impersonated her husband, the answer would be yes."
The alleged crime in People v. Morales occurred after a woman identified 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.
Doe and her boyfriend went to bed and discussed having sex, but decided not to because her boyfriend had to leave. After he departed and 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.
At trial, Doe testified that she was asleep and never consented. Morales testified he thought Doe had awakened because she returned his kisses, helped him remove her pajamas and repositioned herself on the bed. But he admitted he knew that she was likely mistaking him for her boyfriend.
Prosecutors argued that either Doe was asleep, or "was not aware of the essential characteristics of the act" because of Morales' trickery. As the prosecutor argued to the jury, "that's an essential detail, to know who it is you're having sex with."
On Wednesday, Willhite wrote that there's no doubt Morales committed rape if Doe was still asleep when he started having sex with her. But the trickery theory, as set out in Judicial Council criminal instruction 1003, incorrectly states the law, he concluded. Because it was unclear which theory the jury relied on, the conviction had to be reversed.
Though the circumstances may sound bizarre, sex by impersonation has a lengthy legal lineage, with aspects of the crime having "vexed courts for more than a hundred years," Willhite wrote.
In Morales' case, part of the problem is that California's definition of rape specifically includes impersonation but only by a spouse. Thirty-one years ago, Third District Justice George Paras complained about this "obvious and serious oversight in our Penal Code," but the Legislature has taken no action, wrote Willhite, who was joined by Justices Norman Epstein and Nora Manella.
"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 specific code section, Willhite wrote. "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."
In so holding, Willhite urged the 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."
Northridge attorney Edward Schulman argued the case for Morales. Deputy attorney general Elaine Tumonis represented the state.