independent

Friday 18 April 2014

Sex with sleeping woman wasn’t rape ‘because she was unmarried’, court rules

The rape conviction of a US man, who authorities say pretended to be a sleeping woman's boyfriend before initiating intercourse, has been overturned because an arcane law from 1872 doesn't protect unmarried women in such cases.

A panel of judges at Los Angeles court ruled that the trial court conviction of Julio Morales be overturned, and he be remanded for retrial.

In reversing the decision, the Los Angeles court ruled that Morales should not be convicted of raping a woman and shouldn't be serving a three-year sentence.

In a ruling this week the Second District Court of Appeal in Los Angeles also urged the legislature to change the arcane law.

Mr Morales is alleged to have entered the woman's bedroom late one night after her boyfriend had gone home and initiated sexual intercourse while she was asleep.

The victim said her boyfriend was in the room where the alleged assault took place, and that they had decided not have sex as he did not have a condom and had to be somewhere early the next day. Morales is then alleged to have pretended to be her boyfriend in the darkened room.

When a flash of light from outside lit up the room she realised he wasn’t her boyfriend, according to prosecutors.

Morales admitted in court that at one point during the incident, which took place in 2009, he thought the victim may have believed she was kissing her boyfriend.

The reversal of the charge is based on a California penal code law from 1872 which states: 'any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability (at least as a sex offender under title. IX of the Penal. Code), unless he (or she) ... masquerades as the victim’s spouse'.

Under the legal definition, therefore, judges ruled the case should be overturned as Morales is alleged to have pretended to be the victim's boyfriend, rather than the her husband.

"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.

Willhite noted that the law has been applied inconsistently over the years in California.

Prior to the conviction, Morales' attorney Edward Schulman had argued Morales believed the sex was consensual because the victim responded to his kisses and caresses, according to the decision.

A similar law in Idaho prevented an unmarried woman in 2010 from pressing rape charges after being tricked into sex with a stranger by her then-boyfriend.

Idaho’s law was amended to cover all women in 2011.

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