If only the man who had crawled into bed with the woman―known in the court record as Jane Doe―had impersonated a husband instead of a boyfriend, he would have been guilty of rape.

Instead, the California Court of Appeal for the Second District ruled that the state Penal Code is clear: sex-by-impersonation is only rape when the impersonator is pretending to be a spouse. The three-judge panel ordered a retrial of Julio Morales with instructions that the lower court, essentially, ignore his trickery.

Morales had been arrested in February 2009 after Jane Doe claimed that he had raped her while she slept. The woman had attended a party with her boyfriend and other friends. After a night of drinking, the boyfriend left and the woman went to sleep. One of the other partiers, who had remained, entered her room and initiated sex with her, although he later admitted that the sleepy, intoxicated woman almost certainly was mistaking him for her boyfriend.

The woman said she awoke while intercourse was taking place, realized that the man was not her boyfriend and tried to disengage. He resisted, she screamed and he left. The police later arrested Morales hiding in the bushes outside.

A key issue for the court was that the act involved “fraud in the inducement rather than fraud in the fact.” If Morales had told Doe he would do one thing and then did another, that would be fraud in the fact. But misleading someone in order to gain consent is fraud of inducement and perfectly legal, although a tad dishonorable.

“In that situation, courts have historically been reluctant to impose criminal liability on the defendant since the victim consented to the particular act performed, albeit under false pretenses,” Justice Thomas Willhite Jr. wrote in the court’s opinion.

The justices directed the trial court to make sure its instructions to the lawyers and jury were clear about what the law states. “If the jury believed that defendant thought Jane was awake and conscious that she was engaging in sexual intercourse, it could not find defendant guilty of rape of an unconscious person. No other instruction was necessary.”

–Ken Broder

To Learn More:

Man Who Says He Tricked Woman into Sex Can't be Convicted of Rape (by Scott Graham, The Recorder)

People v. Julio Morales (California Court of Appeal, Second District) (pdf)