It’s Not Rape If She Thinks You’re Her Boyfriend

California’s Second District Court of Appeals ruled earlier this month that pretending to be a woman’s boyfriend in order to have sex with her isn’t rape. In People v. Morales, Julio Morales had sex with the victim after her (real) boyfriend left her house. The victim alleges that in the dark bedroom, Morales kissed her on the cheek, and then she woke up “to the sensation of having sex.” When she saw Morales and realized that he was in fact not her boyfriend, she resisted and he left. Morales has served his three-year sentence already, and appealed for a retrial. Citing an obscure technicality from a law written in 1872, the Court ruled that this morally objectionable action is not rape, granting him a new trial.

Subsection 5 of the California Penal Code Section 261 states that rape occurs:

(5) Where a person submits under the belief that the person
committing the act is the victim’s spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.

Morales’ defense argued that since the victim and her boyfriend were not married at the time of the sexual intercourse, his actions were not a violation of California’s rape law. It is important to note, however, that it is illegal in California to knowingly engage in sex with someone who is unable to consent because he or she is unconscious. This will be a point of contention in the new trial. The defense will likely argue that since she testified that Morales kissed her on the cheek, he had good reason to believe that she was conscious, and would remain conscious.

In Pennsylvania, there is no distinction for whether the victim in this circumstance thought that the offender was her boyfriend or spouse. However, in Pennsylvania this would likely be charged as Sexual Assault instead of Rape. Sexual Assault merely requires sexual intercourse without consent; Rape requires sexual intercourse by force (or threat thereof), or a number of other factors that otherwise limit the victim’s ability to give consent. Read more about Pennsylvania’s statute for rape here.