A California appeals court has decided that an 18-year-old woman technically wasn’t raped by a man who had sex with her while she was asleep because he was pretending to be her boyfriend. But if the woman had been married and the man had been impersonating her husband? The court acknowledged the outcome would have been different.

Wait, what?!

Here’s the reason: a ridiculous and arcane law from 1872 that says it would be considered rape only if the woman had been married and the man had been impersonating her husband.

“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,” the court decision read. “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.”

Yeah, that’s all kinds of messed up.

And because it’s unclear whether the court convicted Julio Morales for having sex with a sleeping woman (which would be considered rape), or for deceiving her into thinking he was her boyfriend (which is not considered rape because the woman is not married), the 2nd District Court of Appeal in Los Angeles overturned the conviction of Morales and ruled he must be retried.

“Today’s news is such bullshit that it’s hard to process even with that in mind,” Jezebel’s Katie J.M. Baker writes Friday. “Sleeping with someone while they are sleeping is rape. Tricking someone into sleeping with you is also rape, to say the least of what that is. The definition of rape should depend on the act itself, not on the identity of the person you are impersonating. Maybe that didn’t go without saying in the Victorian Era, but it sure should now.”

Exactly.

— Posted by Tracy Bloom.

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