California rape law from 1872 leads to overturning of rape conviction because the victim wasn't married.

Rape Conviction Overturned Because Victim Wasn't Married

Rape Conviction Overturned Because Victim Wasn't Married

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Jan. 4 2013 2:35 PM

Judges, Grudgingly, Overturn Rape Conviction Thanks to Arcane Law From 1872

A California panel of judges overturned a rape conviction in part based on an arcane 19th century law

Photo by Joe Raedle/Getty Images.

Thanks in large part to a 19th century California law, a man who pretended to be the boyfriend of a sleeping woman before initiating sexual intercourse with her could get a second chance at a trial after an appellate panel of judges overturned his rape conviction. Why? The woman wasn't married.

The judges are urging legislators to update the clearly outdated state law after deciding that Julio Morales, who was convicted and sentenced to three years in prison by a trial court, may have been sent to jail based on an argument by prosecutors that wasn't—in the very strictest sense—a correct interpretation of the arcane law.


The 1872 criminal code, which apparently is still the state's definition of rape by impersonation, applies as written only if the rapist is pretending to be the husband of a married victim. Here's Judge Thomas L. Willhite Jr. on why the obviously reluctant panel of judges decided to overturn the conviction:

"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."

According to the Associated Press, prosecutors actually presented two arguments for conviction during the trial: the impersonation argument and the argument that Morales's initiation of sexual intercourse with an unconscious person is, by law, rape. But the appellate court wasn't sure which argument jurors used to make their decision, necessitating a retrial. According to the Los Angeles Times, prosecutors are still deciding whether they'll retry Morales (maybe this time with only one argument) or if they'll appeal to the California Supreme Court.