When rape isn’t rape

A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape?

That's the beginning of a controversial decision from an appeals court in California this week that has people calling for a change in an old law.

Julio Morales had been convicted of rape and sentenced to three years in state prison.

Yesterday, the Court of Appeals in Los Angeles answered the question it raised above. No, it's not rape.

It said the California law on rape of an unconscious woman says the woman "is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her."

But the woman in this case was awake; she just thought it was her boyfriend, and besides, Morales didn't pretend to be her boyfriend.

The court, however, didn't really need any of that because it said it was constrained by an 1872 law defining rape:

In light of the continued existence of a separate provision that expressly makes sexual intercourse by impersonation a rape, albeit only when the victim is married and the perpetrator impersonates the victim‟s spouse, we are compelled to interpret section 261, subdivision (a)(4), in a way that does not render subdivision (a)(5) 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).

"Judicial activism" has become a bad phrase. A woman in California, however, could've used a little in this case.

Here's the full opinion.

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