California court: Victim wasn’t married, rape conviction reversed

A man found guilty of raping a sleeping woman gets a new trial, as a consent statute doesn't protect single people

Topics: Violence Against Women, California court of appeals, War on women, Sexual assualt, Editor's Picks, ,

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).

You Might Also Like

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.

Irin Carmon
Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 13
  • Close
  • Fullscreen
  • Thumbnails

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    Young Daya has yet to become entirely jaded, but she has the character's trademark skeptical pout down pat. And with a piece-of-work mother like Aleida -- who oscillates between jealousy and scorn for her creatively gifted daughter, chucking out the artwork she brings home from summer camp -- who can blame her?

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    With her marriage to prison penpal Vince Muccio, Lorna finally got to wear the white veil she has fantasized about since childhood (even if it was made of toilet paper).

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    Cindy's embrace of Judaism makes sense when we see her childhood, lived under the fist of a terrifying father who preached a fire-and-brimstone version of Christianity. As she put it: "I was raised in a church where I was told to believe and pray. And if I was bad, I’d go to hell."

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    Joey Caputo has always tried to be a good guy, whether it's offering to fight a disabled wrestler at a high school wrestling event or giving up his musical ambitions to raise another man's child. But trying to be a nice guy never exactly worked out for him -- which might explain why he decides to take the selfish route in the Season 3 finale.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    In one of the season's more moving flashbacks, we see a young Boo -- who rejected the traditional trappings of femininity from a young age -- clashing with her mother over what to wear. Later, she makes the decision not to visit her mother on her deathbed if it means pretending to be something she's not. As she puts it, "I refuse to be invisible, Daddy. Not for you, not for Mom, not for anybody.”

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    We still don't know what landed Brooke Soso in the slammer, but a late-season flashback suggests that some seriously overbearing parenting may have been the impetus for her downward spiral.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    We already know a little about Poussey's relationship with her military father, but this season we saw a softer side of the spunky fan-favorite, who still pines for the loving mom that she lost too young.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    Pennsatucky had something of a redemption arc this season, and glimpses of her childhood only serve to increase viewer sympathy for the character, whose mother forced her to chug Mountain Dew outside the Social Security Administration office and stripped her of her sexual agency before she was even old enough to comprehend it.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    This season, we got an intense look at the teenage life of one of Litchfield's most isolated and underexplored inmates. Rebuffed and scorned by her suitor at an arranged marriage, the young Chinese immigrant stored up a grudge, and ultimately exacted a merciless revenge.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    It's difficult to sympathize with the racist, misogynist CO Sam Healy, but the snippets we get of his childhood -- raised by a mentally ill mother, vomited on by a homeless man he mistakes for Jesus when he runs to the church for help -- certainly help us understand him better.

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    This season, we learned a lot about one of Litchfield's biggest enigmas, as we saw the roots of Norma's silence (a childhood stutter) and the reason for her incarceration (killing the oppressive cult leader she followed for decades).

    The 12 most incredible pint-size look-alikes in "Orange Is the New Black" season 3

    While Nicki's mother certainly isn't entirely to blame for her daughter's struggles with addiction, an early childhood flashback -- of an adorable young Nicki being rebuffed on Mother's Day -- certainly helps us understand the roots of Nicki's scarred psyche.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>