[Cali] Fornication by False Pretences—No Penalty for Partner Personation under California's Penal Code
| DOI | 10.1350/jcla.2013.77.4.856 |
| Published date | 01 August 2013 |
| Date | 01 August 2013 |
| Subject Matter | Article |
[Cali] fornication by False
Pretences—No Penalty for
Partner Personation under
California’s Penal Code
Mitchell C. Davies*
Abstract This article considers the recent decision of the Second District
Court of Appeal of California in People v Julio Morales. The California Court
of Appeal controversially quashed the conviction for rape of the appellant
who had had sexual intercourse with the victim seemingly whilst she had
initially been asleep. With there being conflicting accounts as to whether
the victim had been awake or asleep during the intercourse, the appellant
had been convicted of rape by the jury on the alternative bases of her
either: (1) having been unconscious (asleep) during the intercourse or; (2)
having been awake during the intercourse, but mistaken as to the identity
of her sexual partner, believing him to be her boyfriend. In a restrictive
judgment, displaying more concern for principles of statutory interpreta-
tion than criminal justice, the appeal court quashed the appellant’s convic-
tion. The reasoning of the court was that the jury might have convicted on
the basis of (2) above and that the California Penal Code recognised the
offence of rape as being possible in personation cases only where the
person being impersonated is the spouse of the victim. This article suggests
a number of ways that were open to the appeal court to avoid this
unsatisfactory outcome, both by application of other provisions of the
Penal Code itself and by reference to the history of the spousal impersona-
tion rule traceable back to old English common law.
Keywords Rape; Impersonation of boyfriend; California; People v
Julio Morales
The recent decision of the Second District Appeal Court of California in
People v Julio Morales1to quash the appellant’s rape conviction has
caused considerable controversy both in California2and much further
afield where it has been subject to scrutiny by the international
media.3
The attention and criticism that the case has garnered is not without
merit as a brief recitation of the facts will show. The appellant had been
at the victim (‘Jane Doe’s’) house in the early hours of the morning with
Jane’s boyfriend, Victor, her brother and several of his friends following
* Director, Cayman Islands Law School; e-mail: Mitchell.Davies@gov.ky.
1 (2013) WL 19558 Cal App 2nd.
2 See, e.g., M. Dolan, ‘Court voids rape conviction in impersonation ruling’, Los
Angeles Times, 3 January 2013.
3 See, e.g., T. Walker, ‘Imposter’ wins rape appeal as victim unmarried’, Independent,
4 January 2013; Reuters, ‘California official urges change in law to stop rape by
impersonators’, Sydney Morning Herald, 6 January 2013; E. G. Gallegos, ‘Court: it’s
not rape if you’re pretending to be your victim’s boyfriend’, Toronto Sun, 3 January
2013.
325The Journal of Criminal Law (2013) 77 JCL 325–336
doi:10.1350/jcla.2013.77.4.856
To continue reading
Request your trial