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Rape by False Pretenses

Wednesday's decision by the California Court of Appeal in People v. Morales, B233796, has gotten a lot of attention.  Bob Egelko has this story in the SF Chronicle.  Under Penal Code ยง261(a), the crime of rape is committed when consent to intercourse is negated in a number of different ways, the most common being force.

The Morales case arises from an incident where the victim's boyfriend left the room, she fell asleep, Morales entered, he began having sex with her, possibly while she was still asleep, she continued consensually believing he was her boyfriend, and he knew that.  She says, and he denies, that he continued by force after she realized who he was and pushed him away.  The problem arises from some nineteenth century language still in the statute.
(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(5) Where a person 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.

On its face, (a)(4)(C) could be broad enough to encompass impersonation on the theory that identity is an "essential characteristic," but then (a)(5) would be superfluous.  "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 of an unconscious person under section 261, subdivision (a)(4). The prosecutor argued this precise theory to the jury, and CALCRIM No. 1003 [a standard jury instruction] as read to the jury in this case allowed the jury to convict defendant under the theory that he impersonated Jane's boyfriend."

In this case, Morales may very well be convicted on retrial under (a)(4)(A) or (a)(2), if the jury believes the victim's version of events rather than his.

Given the attention this case has received, there is a good chance that even California's generally pro-criminal Legislature will have to fix this statute, as the court has urged it to do.  Just change "the victim's spouse" to "someone else."

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