California Finally Overturns Its 1872 Law Denying Justice For Unmarried Rape Victims


On Monday, California closed a sexual assault loophole created by a 1872 state law, expanding one definition of rape to include unmarried people. The arcane law led to an appeals court reluctantly overturning a man’s rape conviction for impersonating a woman’s boyfriend while she was unconscious. Under the old law, rape occurred 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.” Thus, the old law allowed a rapist to escape rape charges if he pretended to be his victim’s unmarried partner.

This loophole in the old law led to an unfortunate decision by a California court. “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,” the court ruled in a unanimous decision. “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.” Julio Morales had already confessed to having sex with the woman as she slept, and when she woke up and realized the person was not her boyfriend, she “began to cry and yell.”


Though the new law will not directly impact Morales’ fate, the appeals court did grant a retrial. Under the new law, impersonating a person’s unmarried partner also counts as rape.

Even before the decision, the California legislature was well aware of the 19th century law. Legislators introduced a new bill in 2011, but it never left the Senate Public Safety committee after passing the State Assembly.

“Today’s action by the Governor concludes a nearly three year effort to close this outdated and unconscionable loophole that has denied victims the justice that they deserve,” assembly member and bill sponsor Katcho Achadjian (R) said.