This article considers the recent decision of the Second District Court of Appeal of California in People v Julio Morales. The California Court of Appeal controversially quashed the conviction for rape of the appellant who had had sexual intercourse with the victim seemingly whilst she had initially been asleep. With there being conflicting accounts as to whether the victim had been awake or asleep during the intercourse, the appellant had been convicted of rape by the jury on the alternative bases of her either: (1) having been unconscious (asleep) during the intercourse or; (2) having been awake during the intercourse, but mistaken as to the identity of her sexual partner, believing him to be her boyfriend. In a restrictive judgment, displaying more concern for principles of statutory interpretation than criminal justice, the appeal court quashed the appellant's conviction. The reasoning of the court was that the jury might have convicted on the basis of (2) above and that the California Penal Code recognised the offence of rape as being possible in personation cases only where the person being impersonated is the spouse of the victim. This article suggests a number of ways that were open to the appeal court to avoid this unsatisfactory outcome, both by application of other provisions of the Penal Code itself and by reference to the history of the spousal impersonation rule traceable back to old English common law.
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