By Brandon Lowrey
LOS ANGELES (Reuters) - California's attorney general on Friday called on lawmakers to update the state's definition of sexual assault after appellate judges overturned a rape conviction on grounds that an obscure, 19th-century law fails to protect unmarried women when a rapist impersonates a lover.
The 1872 statute makes it a crime for a man to have sex with a woman while posing as her husband. But it does not address the case of an impostor who poses as a woman's boyfriend, which was key to the overturned conviction because the woman in that case was unmarried.
"The evidence is clear that this case involved a non consensual assault that fits within the general understanding of what constitutes rape," Kamala Harris, the state's Democratic attorney general, said in a statement. "This law is arcane, and I will work with the Legislature to fix it."
One state lawmaker said on Friday he planned to introduce legislation to change the statute. Assemblyman Katcho Achadjian, a Republican, said in a statement that closing the loophole in the rape law would be his "top legislative priority."
The ruling, handed down on Wednesday by a three-judge panel of the state's Second District Court of Appeal, stems from a 2009 case in which an 18-year-old woman fell asleep next to her boyfriend in her darkened bedroom. Her boyfriend left, another man entered the room, and she awoke to the sensation of having sex, the judges' written opinion said.
In mid-act, a ray of light fell on her partner's face, and the woman discovered it was not her boyfriend but Julio Morales, a friend of her brother, according to evidence from the trial cited in the appellate ruling. She screamed and pushed Morales away, then fled, the court papers said.
Morales was later arrested, convicted of rape and sentenced to three years in state prison - a sentence the appellate judges reluctantly overturned on Wednesday.
A scenario in which a man impersonates a boyfriend in order to have sex with an unmarried woman would not be illegal under California's 19th-century law, the judges said in their ruling.
"Has the man committed rape?" said the ruling from the judges' panel. "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 panel said it had no choice but to overturn the conviction because it could not be sure the jury convicted Morales based on sound legal reasons. In the ruling, the panel urged state lawmakers to close the loophole in the law.
The Los Angeles County District Attorney's office has not decided whether it will retry the case against Morales on a different legal theory or appeal the appellate court's decision to the California Supreme Court, a spokeswoman said on Friday.
Edmund Schulman, an attorney for Morales, said his client has been released from prison after serving his sentence. Schulman declined to comment further.
Achadjian, the California lawmaker, said he last year introduced a bill to make it a felony rape offense for someone to sexually assault a person by impersonating a live-in boyfriend or girlfriend. The bill won unanimous approval in the Assembly, but died in a committee of the state Senate, he said.
The state lawmaker said he championed the legislation in response to another suspected rape case in Santa Barbara County that the local district attorney found she could not prosecute under the 19th-century law, because an intruder had impersonated the boyfriend of an unmarried woman.
(Reporting and writing by Brandon Lowrey; Editing by Alex Dobuzinskis and Steve Gorman)