Remember that scene in Revenge of the Nerds when one of the nerds pretends to be a cheerleader’s boyfriend and has sex with her? In the movie world of Hollywood, this is supercool and awesome. She even falls in love with the nerd because…I don’t know. Sex? Here in the real world, however, that’s considered rape.
A panel of California judges overturned the conviction of Julio Morales because the woman he raped thought that he was her boyfriend. The woman had been drinking and she and her boyfriend had gone to sleep after consciously deciding not to have sex for lack of a condom. At some point in the night, the boyfriend left without the woman’s knowledge. Morales sneaked into the room and, pretending to be the boyfriend in the dark room, had sex with the inebriated and half-asleep woman. She realized during the intercourse that she was having sex with someone who was not her boyfriend.
Had she been married, this would be an open and shut case (no tacky pun intended). But, due to a law passed in 1872 (yes, Eighteen Seventy Two), an unmarried woman is not protected. In other words, if an unmarried woman has sex with a stranger without her consent, then too bad for her. The misogyny and rape culture is so obvious that it simply defies description. This is the kind of parsing of rape that leads to “legitimate rape” and “forcible rape” and allows rapists to, in all seriousness, argue that it was “consensual sex.” That’s not so bad, right?
In this particular, the prosecutors put forth two arguments: one, that it was rape because she was sleeping, and, two, that it was rape because she was tricked. The panel wants to be sure that the conviction was based on the part of the law that defines sex with a sleeping victim as rape and not on the part where tricking an unmarried woman is not rape.
The decision handed down overturning Morales’ conviction and ordering a retrial also calls for an overhaul of the law to remove this egregious loophole. This will be scant comfort to the victim if her rapist goes free and, even if he is convicted for a second time, the trauma of reliving the rape hardly seems to be what we would call justice.