…But is it Rape?
May 6, 2013
Earlier this year, the California Court of Appeals had to determine whether or not a rape occurred when a man entered a sleeping woman’s bedroom and had sex with her, when she thought at the time that the man was her boyfriend. The court held that a rape did not occur, but only because the woman was unmarried. If she had thought she were having sex with her husband instead of her boyfriend, then this bizarre scenario could have resulted in a valid rape conviction under California law.
California’s rape statute, Penal Code section 261, does include rape of an unconscious person where a) the perpetrator is not the spouse of the victim, b) the person at the time is unconscious or unaware of the nature of the act, and c) the perpetrator is aware of this fact. The prosecution in The People v. Morales presented two theories to the jury: 1) that the woman was unconscious/asleep at the time the act occurred; or 2) that the woman was tricked into believing the other person was her boyfriend.
The testimony presented by the prosecution and defense differed over whether the woman was asleep and whether the defendant did anything to actively trick the woman, and it is not known which theory the jury adopted in convicting the defendant. The Appeals Court, however, held that it is not a correct statement of the law that a person could be guilty of rape by impersonating the boyfriend. The court therefore reversed the conviction, since the prosecution’s second theory was erroneous and it was not known if the jury relied on this theory or not.
Interestingly, if a woman is married, it is rape for another person to have sex with the woman while impersonating her husband. Yet it is not rape if an unmarried woman has sex with a man who is impersonating her boyfriend. This distinction is a result of the way California’s rape statute has evolved over time.
Seek Help From an Experienced Southern California Criminal Defense Lawyer Right Away
Crimes are defined by statute, and every element of a crime must be proven by the prosecution beyond a reasonable doubt before a person can be convicted of a crime. It is important to retain an attorney who understands the law and devotes his full attention to your case, crafting the best arguments for your defense and making sure you are not unfairly convicted for a crime you did not commit. If you have been arrested for rape, unlawful sexual intercourse, or another sex offense in Southern California, contact the Law Offices of John D. Lueck in Rancho Cucamonga for a free consultation regarding your rights and the options available to you.