A California appeals court, relying on an outdated statute that prohibits someone from pretending to be someone’s husband but not their boyfriend in order to obtain sex, overturned a man’s conviction for rape because the woman he had sex with was unmarried. Under California law, rape occurs when a woman consents to sex “under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.”
Although the facts of the case are somewhat in dispute, the man admits to having sex with the woman while she slept, and the woman accuses him of sneaking into her bedroom and pretending to be her boyfriend:
Jane asked Victor to spend the night, but he declined because he had something to do the next morning. They talked about having sex, but Victor did not have a condom and they never engaged in unprotected sex, so they decided not to. Eventually, Jane fell asleep while Victor was still there. Victor left sometime later. . . . According to Jane, she woke up to the sensation of having sex. She was in a different position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house.
While being detained in Deputy Peralta’s patrol car, defendant spoke to another deputy, Deputy Leyn. He admitted that he had gone into Jane‟s room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and started to have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming. During a second interview with Deputy Leyn, defendant once again described what happened, including that Jane was asleep when he put his penis into her vagina, and wrote out a statement admitting that he kissed Jane and touched her vagina while she was asleep.
A jury convicted the defendant of rape, although it did not make clear whether he was convicted because he impersonated Jane’s boyfriend or because he had sex with a woman who could not consent to intercourse because she was asleep. Sex with an unconscious woman is rape in California when the accused rapist knows the woman is sleeping. Under the appeals court’s decision, however, obtaining consent to sex by pretending to be someone’s boyfriend is not. As the court explained, “we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person.”
The one silver lining to this decision is that the court did not end the case outright. The defendant will be retried and can be reconvicted if a new trial determines that he had sex with Jane while she was sleeping — a likely conclusion given the defendant’s admission that he did so.