The California Court of Appeals handed down a stunning decision holding that a man who admitted to police that the women he woke up for sex likely mistook him for her boyfriend, is not guilty of rape. This is but one more illustration of just how far the law has yet to go to recognize women’s sexual autonomy.

Here is how the court itself framed the issue:

“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 defendant, Julio Morales, was among a group of people who attended a party with the victim and her boyfriend. After the party the group returned to the woman’s home, where she fell asleep in her dark bedroom. After her boyfriend left, the defendant entered her bedroom and began having sex with the woman. She said she yelled and tried to push Morales away when she realized he was not her boyfriend. She describes waking up to the sensation of someone having sex with her and as soon as she realized what was happening began screaming, crying, and yelling. But, according to the California court, this was not technically a violation of her ability to consent to sex.

Really.

Prosecutors had argued Morales was guilty under a law barring the rape of an unconscious woman under two alternate theories. One theory was pretty simple:  the act was a rape because the woman was asleep and therefore did not consent to sex. The second theory, and the one the court struggled with the most, was that the act was a rape because the woman was unaware of the nature of the act based on a lie or trickery, and that lie being Morales impersonating her boyfriend.

The issue of whether pretending to be someone else for the purposes of having sex with another is an issue that courts have wrangled with for at least a century. The law generally provides for two kinds of fraud: fraud in the inducement and fraud in the fact. The difference between the two can sometimes be difficult to distinguish, but in general pretending to be someone else to get sex is considered fraud in the fact rendering any claims of consent invalid.

But the courts have been inconsistent when characterizing sex crimes involving impersonation and in California law sexual intercourse by impersonation is rape, but only when the victim is married and the perpetrator impersonates the victim’s spouse. For example, in Mathews v. Superior Court a case from 1981, the defendant was charged with attempted fraudulent procurement of a female to have illicit carnal connection, based upon allegations that he sexually fondled and caressed her while she was in the bed she usually shared with her boyfriend. In that case the majority concluded the charges could not be sustained because “one who obtains sexual favors for himself by fraud cannot be held to “procure” sex within the meaning of [the statute.]” Although in Mathews the majority opinion did not address the impersonation issue, in a concurring opinion, Acting Presiding Justice Paras impliedly referred to impersonation as fraud in the inducement. The justice, who wrote that he offered his concurring opinion “to emphasize what I perceive as an obvious and serious oversight in our Penal Code” asserting that the “distinction between married and unmarried victims seems no longer warranted” in “[a] society which has condoned meretricious relationships.”

Just a few years later the court would come to a slightly different conclusion of when “trickery” voids claims of  consent in Boro v. Superior Court (1985). While the Boro case did not involve impersonation but rather a misrepresentation that the sexual intercourse was a necessary medical treatment, the court addressed impersonation in its discussion of the meaning of “unconscious of the nature of the act.”

In Boro the court noted the disagreement among the courts as to whether impersonation constitutes fraud in the inducement or fraud in the fact, and stated that California has by statute “adopted the majority view” that impersonation of the victim‟s husband is fraud in the fact. The court in Boro observed that although the facts in Mathews, “demonstrate classic fraud in the factum, a concurring opinion . . . specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in [the statute].” But despite that, the court in Boro also saw itself unable to rule otherwise absent a change in the law from the legislature.

What this confusion in the case law shows is that until California amends its criminal code to reflect impersonating anyone for the sake of procuring sex, women in the state remain at significant risk that their rape will go unpunished. This is the fact the court in this most recent Morales struggled with, and it’s opinion represents a clear signal to the California legislature to update its sex crimes laws. The court gave its holding that Morales was not guilty of rape by impersonation “reluctantly” and ordered the defendant re-tried on the issue of whether the act was a rape because the woman was asleep.

So while there remains the possibility that some justice will be done in this case, it does not change the fact that in the law in California (and elsewhere) still understands a woman’s ability to consent to sex as somewhat relational to who she is having sex with. It’s reassuring to know the court was troubled by the outcome here, it does nothing to change the law. In fact, it does just the opposite and reinforces the idea that women’s sexuality is something to be measured in terms of her relationship to a man. As long as that fact remains women will not be considered fully autonomous under the law and our claims of sexual violation will remain suspect from the start.