On Feb. 20, 2009, an 18-year-old woman fell asleep in her bed with her boyfriend and woke up in the dark to find herself being penetrated by another man. Yesterday, a California court reversed the rape conviction of that man, Julio Morales, because the victim wasn’t married to her boyfriend.
This is both less and more outrageous than it sounds, and gets to a legal problem beyond the disturbing particulars of this case: whether consent under false pretenses is consent at all.
Before anger rains down solely on the three-judge panel from California’s court of appeals, let’s be clear here: One, the prosecutor screwed up by misapplying California’s rape laws, and two, California’s 19th-century rape laws still on the books are partly to blame. Still, the judges chose to interpret the law as strictly as possible, reversing the entire conviction and instructing the court to retry the case on a more limited basis.
On that February night, a group of friends, including Morales and the victim, Jane Doe, went to a party, and then to Jane and her brother’s home to eat and hang out. Jane and her boyfriend went to her bedroom, at which point they discussed having sex, but opted against it because they didn’t have a condom and because he had to be up early the next day. She fell asleep, her boyfriend left — and Morales came into her room and raped her. When she awoke and realized it wasn’t her boyfriend, according to the prosecution, she resisted, and he ran away. When the case eventually came before a court, prosecutors argued two points: The woman had been unconscious and unable to consent, and Morales had used fraud to have sex with her. Morales was convicted of rape and sentenced to three years in prison.
Then Morales appealed, partly disputing the facts of whether Jane consented. (He claims she kissed him back and that meant consent.) The judges waved that one off, justifiably: The fact that Jane was unconscious — something no one denied, and something Morales was fully aware of — when she was raped was enough to convict him under California law.
But Morales’ lawyer also claimed that his client hadn’t done anything to trick Jane into thinking she was with her boyfriend, and that California law only explicitly makes it a crime to trick someone into having sex if she believes she’s having sex with her husband. That’s technically true of the law. The judges said that because they couldn’t be sure whether the jury had convicted Morales based on correct theory (that she was unconscious) rather than the incorrect one (he pretended to be someone else), the whole case had to be retried.
Whether rape law is supposed to protect against violence or against broader violation — “physical security” versus “sexual autonomy,” as one of the papers the judges cited puts it — is also at the heart of the issue. Prioritizing physical security privileges force or violence, as opposed to other forms of coercion, like psychological or professional. Historically, courts have been divided: Sometimes they made a distinction between fraud in the fact (the person didn’t consent to have sex) and fraud in the inducement (the person consented to sex under false pretenses).
In 1986, California changed its rape law in response to a notorious case of another kind of fraudulent inducement: A doctor who convinced women to have sex with him by claiming it was medical treatment. An appellate court sided with the doctor, asking, “Ought the liar and seducer to be chargeable as a rapist?” In other words, the women consented to sex, if under false information, so it wasn’t rape. A year later, “Dr. Feelgood” was convicted under the new law that specified that what counted was “true, good faith consent, obtained without substantial fraud or deceit.”
But in the absence of an explicit law like that, courts across the country have often taken the narrower view of consent. For example, in the 1994 case of a twin impersonating his brother in order to have sex with his brother’s girlfriend (the same premise of this creeptastic Hornitos commercial) the court ruled that it wasn’t rape because New York state law didn’t specifically include fraud as obviating consent. (It still doesn’t).
California’s fraud language was progressive when it was enacted in 1872, because, as the court notes, “these provisions were included specifically in response to cases from England and elsewhere that held that no rape was committed under those circumstances” — a woman who thought she was sleeping with her husband, not committing “adultery.” For whatever reason, the language has stuck despite subsequent amendments to, for example, make it gender-neutral: Thinking you were having marital sex is still the benchmark for fraud.
That’s why the judges made two recommendations: One, try Morales for a rape charge because he had sex with an unconscious woman. Two, change the law so what he did is also fraud, whether she was married to her boyfriend or not. A jury will now likely decide the first part. The second recommendation will require enough sustained outrage to get it through the legislature.