A California 2nd District Court of Appeal's decision recently concluded a man had not raped an 18-year-old woman because a state law crafted in the 1870s says a person who gets consent for sex by pretending to be someone else is only guilty of rape if the victim is married and the perpetrator is pretending to be the spouse.
According to The Associated Press, the victim said her boyfriend was in the room when she fell asleep following a night of partying with Jose Morales and others. They opted not to have sex that night because he didn't have a condom. After the boyfriend left, Morales entered her room and they began having sex.
It wasn't until a ray of light from outside the room illuminated Morales' face that the woman realized it wasn't her boyfriend, prosecutors said.
Defense attorneys argued Morales believed the sex was consensual because the victim responded to his kisses and caresses, reported the AP.
The appellate ruling said Morales gave conflicting testimony about whether he tried to identify himself. The court, which remanded the case back for retrial, noted prosecutors had argued two theories and it wasn't clear which the jury used for the conviction that led to a three-year prison sentence: that Morales "tricked, lied to, or concealed information" from the victim, or because he had sex with the woman while she slept. The latter is already defined as rape under state law.
California Attorney General Kamala Harris, whose prosecutors handled the appellate case, promised to work with legislators to amend the law.
"The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape," Harris said in a statement, reported by the AP. "This law is arcane and I will work with the Legislature to fix it."
A similar law in Idaho prevented an unmarried woman from pressing rape charges three years ago after being tricked into sex with a stranger by her then-boyfriend. Idaho's law was amended to cover all women in 2011.
To read more: http://www.foxnews.com/us/2013/01/05/calif-lawmaker-to-bring-back-rape-loophole-bill/#ixzz2HLrwxWgL
Michael Thomas Gargiulo, Pretrial Hearing 41
20 hours ago