California Lawyer


March 2013

"A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes."

-Associate Justice Thomas L. Willhite Jr., writing in People v. Morales (212 Cal. App. 4th 583, 585-6 (2013)) for Division 4 of the Second Appellate District, which ruled that the defendant did not commit rape of an "unconscious person" under a California definition of rape first codified in 1872. The case was remanded for a new trial under different jury instructions.
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