NORTH COAST, Calif. – In the wake of an appeals court hearing that overturned a rape conviction based on a more than century old loophole, the state senator representing Lake and several other North Coast counties said on Friday she would introduce legislation to fix the law.
Sen. Noreen Evans (D-Santa Rosa), who chairs the Senate Judiciary committee and the California Legislative Women’s Caucus, said she would introduce the legislation in reaction to a Second District Court of Appeal decision filed Wednesday.
That decision, People v. Julio Morales, reversed a rape conviction of a Southern California man based on a law codified in 1872.
Morales was accused of entering the dark bedroom of a female acquaintance after her boyfriend left and having sex with her while she slept, without disclosing his identity.
When the woman woke up and realized it was not her boyfriend, she pushed him away and began to cry and yell, and he left, the decision explained.
California Penal Code 261(a)(5) states that rape includes situations “where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”
By referencing a “spouse,” the law does not cover single women.
The appeals court’s decision explains it this way: “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.”
The justices pointed out that while Penal Code Section 261 has been amended numerous times over the past 140 years, two subdivisions – one, (a)(4), relating to a person “unconscious of the nature of the act, and this is known to the accused,” and the second being (a)(5), relating to a person submitting believing the person committing the act is their spouse – have not been changed.
“Therefore, 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 under section 261, subdivision (a)(4),” according to the decision.
The appeals court decision also noted that the record did not make clear if the jury made its decision based on a legally invalid theory of the case presented by the prosecutor.
“I am shocked and appalled that the court didn’t see fit to uphold justice for this rape survivor,” Evans said. “The fact that such an outdated loophole still exists is baffling but I will introduce legislation this session that will bring uniform clarity. The definition of rape is found in the act itself and having sex with an unconscious person is rape. Period.”
California Attorney General Kamala Harris, whose office argued against the conviction being overturned before the appeals court, also decried the decision.
“The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape,” Harris said in a Friday statement. “This law is arcane and I will work with the Legislature to fix it.”
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.