Is Having Sex with Someone, Pretending to Be Her Boyfriend, Rape?

People v. Morales (Cal. Ct. App. Jan. 2, 2013) says no, following the general view of American courts (see, e.g., Suliveres v. Commonwealth (Mass. 2007)). The one exception that courts have historically recognized is having sex with a person while pretending to be the person’s spouse, which is indeed treated as rape. The facts:

[D]efendant Julio Morales entered the dark bedroom of victim Jane Doe after her boyfriend departed and, without disclosing his identity, had sexual intercourse with her. He was charged with rape of an unconscious person under Penal Code section 261, subdivision (a)(4). The jury was instructed with CALCRIM No. 1003, which, as given, stated in part that “[a] woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” (Italics added.) The prosecutor argued both correct and incorrect theories under which Jane was unconscious: that she was asleep (correct), and that she was not aware of the essential characteristics of the act because defendant deceived her into believing he was her boyfriend (as we explain below, incorrect). Defendant was convicted of violating section 261, subdivision (a)(4), and the trial court sentenced him to the low term of three years in state prison, from which judgment defendant appeals. Because we cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory, we must reverse. [Footnote: In doing so, we urge 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.] …

Prosecution’s Evidence

On February 20, 2009, 18–year–old “Jane Doe” went to a party with her boyfriend, Victor, and another friend. Jane’s brother, Filiberto, and several of his friends, including defendant, also attended the party. Jane drank three to five beers at the party. [Jane, her boyfriend Victor, defendant, and some others returned to Jane's house to eat; most of the people then left, and Jane went to sleep.] …

According to Jane, she woke up to the sensation of having sex…. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house….

[When defendant was caught by the police, h]e admitted that he had gone into Jane’s room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and started to have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming. During a second interview with Deputy Leyn, defendant once again described what happened, including that Jane was asleep when he put his penis into her vagina, and wrote out a statement admitting that he kissed Jane and touched her vagina while she was asleep.

Defense Evidence

Defendant testified that sometime after Victor had left Jane’s bedroom, Filiberto’s friend Tony and he went into Jane’s room, at Tony’s suggestion. They nudged Jane to try to awaken her so she could come out and drink with them. Defendant then realized that Tony was no longer in the room, and the door was closed. He tried to leave, but the door would not open.

He tried to wake Jane up by nudging her again, but she did not move. He thought she was attractive, so he kissed her on the cheek. She turned toward him, and they kissed some more. He thought she was not asleep because she responded to his kisses, but he also thought she believed he was her boyfriend. [Footnote: Defendant gave conflicting testimony about whether he attempted to identify himself. At first he testified that he did not identify himself and believed Jane did not know who he was, but he later testified that he told Jane he was not her boyfriend.] They kissed for several minutes, … [and then] began to have sex. He stopped because he felt he was betraying his girlfriend; he did not recall Jane pushing him away, and he did not try to reinsert his penis after he pulled out of her.

The court reversed, because it concluded that sex under pretense of identity is not a crime (again, except when the defendant is pretending to be the victim’s spouse). But the court remanded for retrial, because if the prosecution could prove that Morales had indeed had sex with Jane Doe while she was asleep, he would indeed be guilty of rape. (Restarting the sex after Jane pushed him away could qualify as rape as well, but apparently that wasn’t the prosecution’s theory at trial.)

I’m not a fan of allowing general “rape by fraud” prosecutions (see here for some interesting examples from Israel), largely because it would open the door to criminalizing a wide range of lies, whether about fidelity, past sexual partners, wealth, love, and so on, used to get sex. I explain some of my thinking on that here, though I acknowledge that the problem is not an easy one: In particular, I don’t have an entirely satisfying answer to the question, “why is getting money by lying a crime [fraud], but getting sex by lying not?”

But it seems to me that having sex with someone while pretending to be a particular person known to the victim — whether a spouse, a lover, a friend, or what have you — should indeed be criminally punishable. It is, thankfully, apparently a rare sort of lie; it is very far outside the normal level of dishonesty that people expect might happen in their relationships; it is one for which there is no plausible justification or mitigation; and criminalizing it is unlikely to sweep in the garden variety lies that, unfortunately, often appear in people’s sexual and romantic lives.