Is this a universal flaw in all (if not most state rape laws)? Should I write to my state house congressperson and get things moving here in NY?
That law is specific to California, since each state has its own rape laws, but some other states do have "rape by deception" laws of some sort. I don't think NY is among them. But that California law was so out of date, in terms of its limitation to only married women, I'm amazed it wasn't corrected long before now.
The man whose conviction was overturned did commit rape because the woman was unconscious, or only partially aware of what she was doing, but apparently there was some confusion about which rape law the jury convicted him under, or which aspect of the situation was considered rape, which is why the conviction was overturned.
. The judges said that because they couldn't be sure whether the jury had convicted Morales based on correct theory (that she was unconscious) rather than the incorrect one (he pretended to be someone else), the whole case had to be retried.
That's why the judges made two recommendations: One, try Morales for a rape charge because he had sex with an unconscious woman. Two, change the law so what he did is also fraud, whether she was married to her boyfriend or not. A jury will now likely decide the first part. The second recommendation will require enough sustained outrage to get it through the legislature
They are going to do both things--Morales will be retried for raping a woman who was not fully conscious and who did not consent to sex with him, and the archaic wording of the rape by deception law will be changed.
Law That Allows Unmarried Women To Be Raped Will Be Fixed, Says Jimmy Gomez
By Dennis Romero
Jan. 4 2013
An Eastside state legislator was quick to propose fixing an 1872 rape law that got a defendant a new trial for having sex with a woman he duped into believing he was her boyfriend.
California's Second District Appeals Court yesterday said L.A.-area suspect Julio Morales should get a new trial because the old law does not specifically protect unmarried women from rapists who impersonate their boyfriends. The letter of the law only protects married women from people who would impersonate a husband in order to get sex.
News of the ruling yesterday was a sensation. Folks couldn't believe that married woman could be protected by such "rape" under the law while an unmarried one couldn't.
The court urged the legislature to fix the law's language.
Jimmy Gomez, who represents the Eastside and neighborhoods such as Echo Park and Silver Lake, today said he would "vow" to fix the "archaic" law.
A statement from his office:
The reversal of the rape charge is based on a seemingly-archaic law in the California penal code that states: any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability unless the attacker masquerades as the victim's spouse.
... After hearing of the legal travesty that could allow a rapist to walk free, Assemblymember Gomez vowed to fight for a change in the law that would assure that never again will a rapist be able to walk away from their crime.
Prosecutors in the 2009 case allege that Morales climbed into bed with an 18-year-old who had been drinking and fell asleep at a house party.
He started to have sex with her and when she came to she thought he was her boyfriend, according to authorities. At one point she said she realized he was not her boyfriend and tried to push him off but he resisted. He ultimately left.
A first trial ended in a hung jury. A second ended with a conviction. Morales already served his sentence -- 3 years -- for the rape.
The appeals court cited the letter of the law, which states that rape in such a circumstance is limited to a situation ...
... [w]here she submits, 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, with intent to induce such belief.
The rapist did serve his 3 year sentence before his conviction was overturned. If convicted at a new trial, or as a result of a plea bargain/guilty plea, I guess they would give him a suspended sentence.