California still uses the word “rape” in its penal code.

It has laws that outlaw some, but not all types of rape by fraud! It’s a start! The laws passed in 2013. The case that inspired the change was People v Morales.

According to the case records, Julio Morales snuck into bed with a sleeping victim while her bedroom was dark. Morales’s account indicates that he changed her position and she awoke while he was doing so. The victim’s story described that Morales was already conducting rape when she woke up. When she recognized that Morales was not her boyfriend, she tried unsuccessfully to push him away. Prior to going to bed, she’d had several drinks. When she fell asleep, her boyfriend was beside her in the bed.

Morales was charged with two kinds of rape:

1. rape of an unconscious person

2. rape by fraud

Morales was convicted by the lower court but won on appeal. The jury apparently gave credence to the victim having been awakened while he turned her; therefore, she was not “unconscious.”  And the law stated that only pretending to be the victim’s husband qualified as rape.

Today, the law is clear that pretending to be a sexual partner that the victim would find acceptable, “known to the victim, other than the accused,” constitutes rape.

California law also protects against administering a medical treatment as a pretense for sexual penetration.

   (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
   (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
   (5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the
belief.

I’ve seen arguments that only fraud in the factum can be a punishable crime, but California’s law definitely encompasses fraud in the inducement as well. Fraud in the factum takes place when the actor obscures the nature of the act itself, while fraud in the inducement takes place when the actor, not the act, is a hoax.

Why is California’s law insufficient?

Clearly, it recognizes that the victim is harmed by the pretense of the offender that compromises their bodily integrity. But it picks and chooses the type of lie or manipulation that it will punish. That’s a bizarre way of looking at this crime. Either a person is or is not harmed when their bodily integrity is compromised, period. And it is evident that CA believes it is.

So the basic premise, “bodily integrity should not be compromised by scams or misrepresentations,” holds true for all types of scams and misrepresentations. Instead of recognizing the significance and nature of the impact on the the victim; however, CA considers only the size and nature of the hoax.

If a person is killed with a bee bee gun, we’d still consider the offense murder, just as if they were killed by an automatic weapon. Does it really matter how many shots were fired or the caliber of the bullet? Someone who fails to recognize that a rape by fraud victim is indeed raped, in the same way that the victim who was raped by Julio Morales was indeed raped, simply has never experienced rape by fraud.

Rape by fraud cases are not easily pursued. The proofs and behaviors are difficult to establish in a courtroom, so it’s not a case that will overwhelm the court system as people who don’t understand criminal prosecution will protest.  So pretending that only some victims are raped when their bodily integrity is violated, not all, is absurd. Rape by fraud is either a crime, or not……… And it is!