In 2009, Julio Morales was convicted of raping an 18-year-old woman after a house party. The night of the attack, Morales slipped into the victim’s bedroom and began having sex with her while she was asleep. When she woke up, she thought she was sleeping with her boyfriend—who was in the room when she fell asleep–but when light filtered into the room and she saw it was Morales, she began screaming for him to stop.
According to Jane, she woke up to the sensation of having sex. She was in a different position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house.---
He thought she was attractive, so he kissed her on the cheek. She turned toward him, and they kissed some more. He thought she was not asleep because she responded to his kisses, but he also thought she believed he was her boyfriend. They kissed for several minutes, and he became aroused. He began to take her pajamas and underwear off, and she lifted her hips to help him. He unbuckled his belt, pulled down his pants, and began to have sex. He stopped because he felt he was betraying his girlfriend; he did not recall Jane pushing him away, and he did not try to reinsert his penis after he pulled out of her.
When he went to leave the room, it felt like someone was holding the door shut. He finally was able to open the door, and he saw his friend Tony standing outside, laughing.
To the casual observer, the case seems pretty clear cut. If you initiate sex with an unconscious person who does not know who you are and screams for you to stop, most would agree it is rape. However, based on an antiquated law, a panel of California appellate judges overturned Morales’ conviction.
Judge Thomas L. Willhite Jr., speaking for the court, wrote:
“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? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.”
According to the judges, the prosecution in the original case argued two theories of the crime during the original trial. Prosecutors told the jury Morales should be convicted of rape because he had sex was the sleeping victim and because he impersonated her boyfriend during the sex act. Because it was unclear which theory caused the jury to convict Morales, the court ruled he should be retried and the law changed.
The law, which dates back to 1872, has been applied inconsistently over the years and will take work by legislators to get it off the books, or give unmarried victims the same protection as their married counterparts.