AN AMERICAN judge has criticised a loophole in the law which meant he was forced to quash a man's rape conviction because his victim was not married.
Julio Morales had been sentenced to three years in prison after he had intercourse with his victim while pretending to be her boyfriend.
His rape conviction was overturned this week by the Los Angeles Court of Appeal. It ruled that, because of a 19th Century law, he could only be convicted if he had pretended to be the victim's husband.
The California state law, written in 1872, states that "any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability. . . unless he (or she). . . masquerades as the victim's spouse".
Writing that the court "must reverse" the conviction, Judge Thomas L Willhite Jr wrote: "In doing so, we urge the legislature to re-examine. . . and 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."
Mr Morales had been at a party with his victim and returned to her flat with her boyfriend, brother and other friends.
The court heard that the victim, who was 18 at the time of the incident in 2009, had gone to bed with her boyfriend but that they had not had sex.
The boyfriend waited until she fell asleep and left to go home.
Mr Morales then went into the victim's darkened room and began having sex with her. The victim woke, but it was not until a light shone on Mr Morales's face that she realised he was not her boyfriend.
He is due to be retried. (© Daily Telegraph, London)