In California, Sex by Impersonation Isn't Rape?

The California Court of Appeal ruled yesterday in People v. Morales, that a man who tricked a woman into thinking he was her boyfriend to have sex with her is not guilty of committing rape. If this offends you, prepare to be floored: due to "historical anomalies in the law and the statutory definition of rape," if the man had pretended to be the woman's husband, he would be guilty of committing rape. The unfortunate facts of the case can be found in the Court's opinion as well as in this article published by The Recorder.

In its opinion, the Court discusses at length the history of rape and impersonation of spouse. In 1981, a similar case arose where the irony of marital status was not lost on the court. In Mathews v. Superior Court (1981) 119 Cal.App.3d 309, Justice P.J. Paras wrote “to emphasize what I perceive as an obvious and serious oversight in our Penal Code... The section 261, subdivision 5 distinction between married and unmarried victims seems no longer warranted."

Over twenty years later, the Morales Court makes a similar comment (in a footnote) urging "the Legislature to reexamine section 261, subdivisions (a)(4) and (a)(5), and correct the incongruity that exists when a man may commit rape by having intercourse with a woman when impersonating a husband, but not when impersonating a boyfriend." Until the Penal Code is reexamined, requesting two forms of identification and verifying fingerprints of potential partners before engaging in intercourse is advised.