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Rape conviction voided thanks to archaic 19th-century law

Los Angeles Superior Court
Los Angeles Superior Court
Jordon Cooper/Flickr (Creative Commons-licensed)

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A woman comes home from a party with her boyfriend. They fall asleep together, and she later wakes to find he’s having sex with her — she thinks. Turns out, it wasn’t her boyfriend, who had left, but another man pretending to be him. When she screamed and resisted, the man left. Is he guilty of rape?

This was the case before a Los Angeles appeals court, which unanimously – albeit reluctantly – overturned the rape conviction of Julio Morales this week.   The reason?  Morales’ attorney had invoked an obscure law from the 1870’s that determined that such an act would only be rape if the perpetrator were impersonating a woman’s husband – not her boyfriend.  In his ruling, Justice Thomas Willhite Jr. wrote, “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.”  

The justices urged the legislature to change the outdated law to correct the obvious incongruity.  But as it stands, their ruling is legally correct, however morally incomprehensible it may seem to 21st century sensibilities. Whether it was her boyfriend or someone else, some might argue, a sleeping woman cannot consent to sex, and therefore it was a rape.  But it was unclear to the appeals court whether the first jury had convicted Morales for tricking the woman into having sex or the “sleeping person” charge.

Do you think the court made the right decision?  How could such an archaic law remain on the books for so long? Does a sleeping person have the right to be protected from non-consensual sex, no matter who the perpetrator is?


Stanley Goldman, professor of law at Loyola Law School