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Post by iamjumbo on Jan 17, 2013 11:05:45 GMT
the fact that she was sleeping,in and of itself, makes it rape. the prosecution blew this. tricking someone is usually not rape. they should have only gone with the legitimate one
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Post by iamjumbo on Jan 17, 2013 11:07:17 GMT
You and I both agree on that, Gibby. It's rape whether it's the bloke pretending to be her husband or her boyfriend. The law is mad and he should have been found guilty of rape. Only in America, eh? he WAS found guilty of rape. the appeals court simply said that, because it wasn't clear which of the prosecutions theories the jury have convicted him on, they had to overturn the conviction
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Post by iamjumbo on Jan 17, 2013 11:08:37 GMT
Hang on - why is it rape? She was quite willing to have sex with him, she was just mistaken about who he was. Eh, but it brings back memories of the case that has entertained law students for decades: en.wikipedia.org/wiki/R_v_Collinsshe was asleep. being mistaken about who he was is irrelevant. that's why it was overturned
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Post by iamjumbo on Jan 17, 2013 11:12:00 GMT
Hang on - why is it rape? She was quite willing to have sex with him, she was just mistaken about who he was. Eh, but it brings back memories of the case that has entertained law students for decades: en.wikipedia.org/wiki/R_v_Collinstechnically, the appeals court was right. the prosecution should have firmly established that the fool was inside the bedroom when she realized that it wasn't her boyfriend
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Post by iamjumbo on Jan 17, 2013 11:15:07 GMT
Well, no, actually, she wasn't willing too have sex with HIM. She was willing to have sex with her boyfriend and as soon as she realised it WASN'T her boyfriend she objected and refused. How can that NOT be rape? if you read the link, it says that it wasn't proven when she objected. that is the sum and substance of the appeal. if he was still outside, and she realized it and refused, and he came inside anyway, then, he was trespassing. it is a convoluted reasoning, but, the law is the law
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Post by iamjumbo on Jan 17, 2013 11:19:18 GMT
because collins wasn't tried for rape. he was tried for burglary with intent to commit rape. therefore, the entire issue hinged on whether he had committed burglary. the rape was irrelevant. it is NOT similar to an open impersonation case. if you are sitting in a bar, and some guy introduces himself as a celebrity,and you choose to believe that he actually is, you are giving consent when you go to have sex with him. you have seen him, and talked with him. in collin's case, the chick had done neither
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Post by iamjumbo on Jan 17, 2013 11:20:22 GMT
I agree with every word you have said, Gibby. By any rational assessment this was clearly an act of rape. Whether he pretended to be her boyfriend rather than her husband ought to make not the slightest difference in the eyes of the law. it shouldn't, but apparently, it does
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Post by Deleted on Jan 17, 2013 11:24:51 GMT
As I remember Collins,the situation was this.
Collins was feeling horny and saw a ladder leading to the girl's bedroom. He climbed up it wearing nothing by his socks, and admitted to police that his intention was to rape. However, he was at the window when she woke up, and mistaking him for her boyfriend, invited him into bed. They had sex together before she discovered he was someone else. She screamed, and he tried to bolt before her dad arrived on the scene.
He couldn't be charged with rape because she had invited him into the bed and all the sex they had was with her consent . However, the issue was whether he was guilty of burglary, or to put it more fully, entering as a trespasser with intention to rape. For this, he he would have had to be in the bedroom before he was invited in, and no-one was able to decide which bits of his anatomy needed to be over the window frame before he could be said to have enterered the house. The case has entertained law students for decades -- the fact that I've remembered it for so long tells you volumes, if only about me!
So Collins is very similar to the case here, except that the accuser here didn't actually offer any invitation, it was more a question of her agreeing to sex.
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Post by iamjumbo on Jan 17, 2013 11:25:17 GMT
So why is that different to the person who consents to have sex with a man because she thinks he is (oh, I don't know...) Tom Cruse, but he turns out not to be? Suppose a man walks into a room and the woman in bed says "Oh, come to bed darling!" He doesn't know that she thinks he is someone else, but by your definition he is a rapist, because her invitation wasn't intended for him. See the problem? Julio Morales never said who he was, though he perhaps foolishly admitted that he knew she would not have agreed to sex with anyone other than her boyfriend. But a conviction shouldn't depend on that. once again, collins was NOT tried for rape. the conviction, and the court's overturning it, had nothing to do with rape. i seem to have gotten sidetracked
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Post by iamjumbo on Jan 17, 2013 11:31:59 GMT
As I remember Collins,the situation was this. Collins was feeling horny and saw a ladder leading to the girl's bedroom. He climbed up it wearing nothing by his socks, and admitted to police that his intention was to rape. However, he was at the window when she woke up, and mistaking him for her boyfriend, invited him into bed. They had sex together before she discovered he was someone else. She screamed, and he tried to bolt before her dad arrived on the scene. He couldn't be charged with rape because she had invited him into the bed and all the sex they had was with her consent . However, the issue was whether he was guilty of burglary, or to put it more fully, entering as a trespasser with intention to rape. For this, he he would have had to be in the bedroom before he was invited in, and no-one was able to decide which bits of his anatomy needed to be over the window frame before he could be said to have enterered the house. The case has entertained law students for decades -- the fact that I've remembered it for so long tells you volumes, if only about me! So Collins is very similar to the case here, except that the accuser here didn't actually offer any invitation, it was more a question of her agreeing to sex. true, but, the fact is that morales initiated the sex while she was asleep, which is rape, all by itself. just as the collins verdict was overturned because they couldn't get the trespassing right, morales' was overturned because the jury didn't specify that they based their decision on the fact that she was asleep. the impersonation was irrelevant
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Post by iamjumbo on Jan 17, 2013 11:43:20 GMT
So do you distinguish this from the Tom Cruse example? Do you think what Morales did was rape? To make this clear; a Tom Cruse lookalike pretends he is the actor. A woman falls for it and has sex with him. It isn't rape. Julio Morales gets into bed with a woman knowing that she may think he is her boyfriend. That is rape? There may be a fine difference, but I'm struggling with it. california penal code 261 (a)Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1)Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (2)Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3)Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (4)Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (A)Was unconscious or asleep. (B)Was not aware, knowing, perceiving, or cognizant that the act occurred. (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 the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6)Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. the rest of it is here, but, not pertinent to this case codes.lp.findlaw.com/cacode/PEN/3/1/9/1/s261
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Post by Deleted on Jan 17, 2013 11:54:40 GMT
No, that bit is in dispute, Jumbo; it was never proven that she was asleep. Here's a link to the appeal case, and in particular the sleeping bit: In the opening portion of the prosecution‟s argument to the jury, the prosecutor argued that Jane was asleep and did not wake up until after defendantwas having sex with her. Defense counsel then argued that Jane was awakenedwhen she was moved on the bed, and that she was awake when she kisseddefendant and had sex with him, although she may have thought he was herboyfriend Victor. Counsel argued, however, that defendant did not do anything tomake her think that he was Victor.
In his closing argument, the prosecutor began by pointing out that the defense was arguing that if the jury believed defendant‟stestimony that Jane was awake, there was reasonable doubt. The prosecutor then said, “I don‟t think you can believe and rely on what his statements wereyesterday. But before I do get to why that‟s the case, I want you to know it’s also our position that even if you did believe what he said, he admitted, in part, that hedid, in fact, commit this crime” (Italics added.) The prosecutor pointed to the portion of the jury instruction that explains what “unconscious of the nature of the act” means, including the portion stating that it includes when the woman is not aware of essential characteristics of the act because the perpetrator tricks, lies to, or conceals information from her
So the jury was (I think) told they could convict even if she wasn't asleep, and that fact was never decided.
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Post by iamjumbo on Jan 17, 2013 14:04:04 GMT
No, that bit is in dispute, Jumbo; it was never proven that she was asleep. Here's a link to the appeal case, and in particular the sleeping bit: In the opening portion of the prosecution‟s argument to the jury, the prosecutor argued that Jane was asleep and did not wake up until after defendantwas having sex with her. Defense counsel then argued that Jane was awakenedwhen she was moved on the bed, and that she was awake when she kisseddefendant and had sex with him, although she may have thought he was herboyfriend Victor. Counsel argued, however, that defendant did not do anything tomake her think that he was Victor.
In his closing argument, the prosecutor began by pointing out that the defense was arguing that if the jury believed defendant‟stestimony that Jane was awake, there was reasonable doubt. The prosecutor then said, “I don‟t think you can believe and rely on what his statements wereyesterday. But before I do get to why that‟s the case, I want you to know it’s also our position that even if you did believe what he said, he admitted, in part, that hedid, in fact, commit this crime” (Italics added.) The prosecutor pointed to the portion of the jury instruction that explains what “unconscious of the nature of the act” means, including the portion stating that it includes when the woman is not aware of essential characteristics of the act because the perpetrator tricks, lies to, or conceals information from her
So the jury was (I think) told they could convict even if she wasn't asleep, and that fact was never decided. yeah, that is why it was reversed. 2 A man enters the dark bedroom of an unmarried woman after seeing herboyfriend leave late at night, and has sexual intercourse with the woman whilepretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer isno, even though, if the woman had been married and the man had impersonated herhusband, the answer would be yes.In the present case, defendant Julio Morales entered the dark bedroom of victim Jane Doe after her boyfriend departed and, without disclosing his identity,had sexual intercourse with her. He was charged with rape of an unconsciousperson under Penal Code section 261, subdivision (a)(4). 1 The jury was instructedwith CALCRIM No. 1003, which, as given, stated in pa rt that “ woman is unconscious of the nature of the act if she is unconscious or asleep or not awarethat the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information fr om her.” (Italics added.) The prosecutor argued both correct and incorrect theories underwhich Jane was unconscious: that she was asleep (correct), and that she was notaware of the essential characteristics of the act because defendant deceived her intobelieving he was her boyfriend (as we explain below, incorrect). Defendant wasconvicted of violating section 261, subdivision (a)(4), and the trial court sentencedhim to the low term of three years in state prison, from which judgment defendant 3 appeals. 2 Because we cannot discern from this record whether the jury convicteddefendant on the correct or incorrect theory, we must reverse.
if the jury convicted him because she was asleep, the verdict would have been upheld. it was reversed because they MIGHT have convicted him because of the impersonation
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Post by iamjumbo on Jan 17, 2013 14:09:00 GMT
6 DISCUSSION Defendant asserts two instructional errors on appeal. First, he contends the trial court‟s instruction on rape of an unconscious person, CALCRIM No. 1003, was flawed because it allowed the jury to convict on an improper legal theory, i.e., that defendant fraudulently concealed that he was not Jane‟s boyfriend when he had sexual intercourse with her. Second, he contends the trial court erred byfailing to instruct on mistake of fact regarding the issue of consent. His secondcontention fails because consent is not at issue in a prosecution for rape of anunconscious person. But as to his first contention, we conclude that under thepeculiar facts of this case, reversal is required because the prosecutor argued anincorrect theory of guilt, the instruction permitted the jury to convict on thattheory, and the record does not permit us to find that the jury relied only on the prosecutor‟s correct theory
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Post by Deleted on Jan 17, 2013 16:33:41 GMT
The trial judge was in a difficult position, I think. He could have told the jury to convict only if they found the woman was asleep, but that would have laid him open to criticism by the proecution. The law needed to be tested by a higher court.
But I see he hasn't been acquitted, and there will be a retrial.
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Post by Deleted on Jan 17, 2013 17:39:40 GMT
I still come back to the point that if the bloke had been impersonating her hubby he'd have been guilty of rape but that because he was only impersonating her boyfriend it wasn't as clear cut. To me that's just barmy; either it's rape or it isn't. I reckon it IS rape myself but either way it shouldn;t make any difference if it's your hubby or your boyfriend. What would be the position if, say, a gay man had impersonated the civil partner of another bloke? The whole law is obviously crazy as well as archaic and we all know we can't eat archaic and have it too! (Probbaly need s a smiley for 'groan!') ;D
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Post by Deleted on Jan 17, 2013 19:47:17 GMT
I still come back to the point that if the bloke had been impersonating her hubby he'd have been guilty of rape but that because he was only impersonating her boyfriend it wasn't as clear cut. To me that's just barmy; either it's rape or it isn't. I reckon it IS rape myself but either way it shouldn;t make any difference if it's your hubby or your boyfriend. What would be the position if, say, a gay man had impersonated the civil partner of another bloke? The whole law is obviously crazy as well as archaic and we all know we can't eat archaic and have it too! (Probbaly need s a smiley for 'groan!') ;D Actually, that was quite funny. The judges didn't sound happy about the law either, but they were bound by precedent. As your view that this was rape...does this depend on whether the man knows she has mistaken him for someone else? In the very similar Collins case, there is no suggestion that he did; she invited him into bed thinking he was her boyfriend, but there was no suggestion that he knew this!
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Post by iamjumbo on Jan 17, 2013 22:46:36 GMT
I still come back to the point that if the bloke had been impersonating her hubby he'd have been guilty of rape but that because he was only impersonating her boyfriend it wasn't as clear cut. To me that's just barmy; either it's rape or it isn't. I reckon it IS rape myself but either way it shouldn;t make any difference if it's your hubby or your boyfriend. What would be the position if, say, a gay man had impersonated the civil partner of another bloke? The whole law is obviously crazy as well as archaic and we all know we can't eat archaic and have it too! (Probbaly need s a smiley for 'groan!') ;D why, that was rather cute. i laughed. i posted quite a bit of the statute, and the link for the rest of it. that is the law. it's only been the last couple of decades that it has been possible for a husband to rape his wife. before, it didn't matter if he hog tied you spread eagled on the bed and screwed you, it wasn't rape. now, rape is rape, whether it is a spouse or stranger
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Post by iamjumbo on Jan 17, 2013 22:48:09 GMT
I still come back to the point that if the bloke had been impersonating her hubby he'd have been guilty of rape but that because he was only impersonating her boyfriend it wasn't as clear cut. To me that's just barmy; either it's rape or it isn't. I reckon it IS rape myself but either way it shouldn;t make any difference if it's your hubby or your boyfriend. What would be the position if, say, a gay man had impersonated the civil partner of another bloke? The whole law is obviously crazy as well as archaic and we all know we can't eat archaic and have it too! (Probbaly need s a smiley for 'groan!') ;D Actually, that was quite funny. The judges didn't sound happy about the law either, but they were bound by precedent. As your view that this was rape...does this depend on whether the man knows she has mistaken him for someone else? In the very similar Collins case, there is no suggestion that he did; she invited him into bed thinking he was her boyfriend, but there was no suggestion that he knew this! in collins, there was. he told the cops that he believed that she thought he was her boyfriend
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Post by Deleted on Jan 18, 2013 7:16:46 GMT
Oh OK - if Collins realised when he was invited in (as opposed to on hindsight) that she was mistaking him for her boyfriend, there really is nothing to choose between the two cases and Morales wasn't a rapist either.
I can't explain why the law is different for married women who make the same error; I'd have to read the cases. But they really should be able to recognise their own spouse, even in the dark!
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