Analysis Law and Policy

California Court Says Rape by Impersonation Isn’t Rape if Woman Is not Married

Jessica Mason Pieklo

A recent California decision shows why updating our sex crimes laws should be a top priority of 2013.

The California Court of Appeals handed down a stunning decision holding that a man who admitted to police that the women he woke up for sex likely mistook him for her boyfriend, is not guilty of rape. This is but one more illustration of just how far the law has yet to go to recognize women’s sexual autonomy.

Here is how the court itself framed the issue:

“A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? 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 defendant, Julio Morales, was among a group of people who attended a party with the victim and her boyfriend. After the party the group returned to the woman’s home, where she fell asleep in her dark bedroom. After her boyfriend left, the defendant entered her bedroom and began having sex with the woman. She said she yelled and tried to push Morales away when she realized he was not her boyfriend. She describes waking up to the sensation of someone having sex with her and as soon as she realized what was happening began screaming, crying, and yelling. But, according to the California court, this was not technically a violation of her ability to consent to sex.

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Really.

Prosecutors had argued Morales was guilty under a law barring the rape of an unconscious woman under two alternate theories. One theory was pretty simple:  the act was a rape because the woman was asleep and therefore did not consent to sex. The second theory, and the one the court struggled with the most, was that the act was a rape because the woman was unaware of the nature of the act based on a lie or trickery, and that lie being Morales impersonating her boyfriend.

The issue of whether pretending to be someone else for the purposes of having sex with another is an issue that courts have wrangled with for at least a century. The law generally provides for two kinds of fraud: fraud in the inducement and fraud in the fact. The difference between the two can sometimes be difficult to distinguish, but in general pretending to be someone else to get sex is considered fraud in the fact rendering any claims of consent invalid.

But the courts have been inconsistent when characterizing sex crimes involving impersonation and in California law sexual intercourse by impersonation is rape, but only when the victim is married and the perpetrator impersonates the victim’s spouse. For example, in Mathews v. Superior Court a case from 1981, the defendant was charged with attempted fraudulent procurement of a female to have illicit carnal connection, based upon allegations that he sexually fondled and caressed her while she was in the bed she usually shared with her boyfriend. In that case the majority concluded the charges could not be sustained because “one who obtains sexual favors for himself by fraud cannot be held to “procure” sex within the meaning of [the statute.]” Although in Mathews the majority opinion did not address the impersonation issue, in a concurring opinion, Acting Presiding Justice Paras impliedly referred to impersonation as fraud in the inducement. The justice, who wrote that he offered his concurring opinion “to emphasize what I perceive as an obvious and serious oversight in our Penal Code” asserting that the “distinction between married and unmarried victims seems no longer warranted” in “[a] society which has condoned meretricious relationships.”

Just a few years later the court would come to a slightly different conclusion of when “trickery” voids claims of  consent in Boro v. Superior Court (1985). While the Boro case did not involve impersonation but rather a misrepresentation that the sexual intercourse was a necessary medical treatment, the court addressed impersonation in its discussion of the meaning of “unconscious of the nature of the act.”

In Boro the court noted the disagreement among the courts as to whether impersonation constitutes fraud in the inducement or fraud in the fact, and stated that California has by statute “adopted the majority view” that impersonation of the victim‟s husband is fraud in the fact. The court in Boro observed that although the facts in Mathews, “demonstrate classic fraud in the factum, a concurring opinion . . . specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in [the statute].” But despite that, the court in Boro also saw itself unable to rule otherwise absent a change in the law from the legislature.

What this confusion in the case law shows is that until California amends its criminal code to reflect impersonating anyone for the sake of procuring sex, women in the state remain at significant risk that their rape will go unpunished. This is the fact the court in this most recent Morales struggled with, and it’s opinion represents a clear signal to the California legislature to update its sex crimes laws. The court gave its holding that Morales was not guilty of rape by impersonation “reluctantly” and ordered the defendant re-tried on the issue of whether the act was a rape because the woman was asleep.

So while there remains the possibility that some justice will be done in this case, it does not change the fact that in the law in California (and elsewhere) still understands a woman’s ability to consent to sex as somewhat relational to who she is having sex with. It’s reassuring to know the court was troubled by the outcome here, it does nothing to change the law. In fact, it does just the opposite and reinforces the idea that women’s sexuality is something to be measured in terms of her relationship to a man. As long as that fact remains women will not be considered fully autonomous under the law and our claims of sexual violation will remain suspect from the start.

Commentary Media

David Daleiden Is Not an Investigative Reporter, Says New Legal Filing Confirming What We Knew Already

Sharona Coutts

An amicus brief filed in a federal court case provided an opportunity for journalists to state in clear terms why David Daleiden's claims to be an investigative reporter endanger the profession and its goal: to safeguard democracy by holding the powerful to account and keeping the public informed.

Last week, 18 of the nation’s preeminent journalists and journalism scholars put their names to a filing in a federal court case between the National Abortion Federation and the Center for Medical Progress, the sham nonprofit set up by anti-choice activist David Daleiden.

From the minute he released his deceptively edited videos, Daleiden has styled himself as a “citizen” or “investigative journalist.” Indeed, upon releasing the footage, Daleiden changed the stated purpose on the website of the Center for Medical Progress to be about investigative reporting instead of tissue brokering, as he had earlier claimed.

The amicus brief provided an opportunity for journalists to state in clear terms why David Daleiden’s claims to be an investigative reporter endanger the profession and its goal: to safeguard democracy by holding the powerful to account and keeping the public informed.

“By calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so,” the journalists and academics wrote. “We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society.”

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The signatories included former and current professors and deans from the nation’s top journalism schools, who have collectively trained hundreds, if not thousands, of reporters. They included women and men with storied careers in investigative journalism, whose credentials to speak with authority about what journalism is and how we do it cannot be doubted.

Their message is clear: David Daleiden is not an investigative journalist, and what he did is, in fact, at odds with the fundamentals of our craft.

Daleiden’s motivation for claiming the status of an investigative reporter is clear. In order to avoid financial ruin and potential jail time, he seeks to cloak himself in the protection of the First Amendment, arguing that everything he did was in his capacity as a reporter, and that the Constitution protects him as a member of the free press.

In so doing, Daleiden threatens to inflict yet more damage than his campaigns have already done, this time to the field of journalism. For if the court were to accept Daleiden’s claims, it would be endorsing his message to the public—that journalists routinely lie, break the law, get people drunk in order to elicit information, and distort quotes and video footage so dramatically that people appear to be saying the exact opposite to what they said. What hope would reporters then have of preserving the already tenuous trust that the public places in our word and our work?

This is not the first time some of the nation’s most decorated reporters have carefully reviewed Daleiden’s claims and the techniques he used to gather the footage for his videos, and concluded that he is not a reporter.

Last month, the Columbia Journalism Review published an article titled “Why the undercover Planned Parenthood videos aren’t journalism,” which was based on the results of a collaboration between the Los Angeles Times and the University of California, Berkeley’s graduate program in journalism.

That study was led by Lowell Bergman, a legendary investigative reporter whose career over the past few decades has been symbiotic with the evolution of the field. Bergman’s team and the LA Times concluded that:

Daleiden, head of the Irvine-based Center for Medical Progress, and his associates contend that they were acting as investigative journalists, seeking to expose illegal conduct. That is one of their defenses in lawsuits brought by Planned Parenthood and other groups, accusing them of fraud and invasion of privacy.

But unpublicized footage and court records show that the activists’ methods were geared more toward political provocation than journalism.

The team found what we already knew: Daleiden and his co-conspirators attempted to plant phrases in their targets’ mouths in the hopes of making them sound bad, hoping to drum up “political pressure,” according to a memo obtained by Bergman’s group that Daleiden wrote to his supporters. The activists’ use of fraud was so extensive and enthusiastic, and their deliberate splicing of videos so manipulative and dishonest, that they in no way reflected the methods or goals of real reporters.

The brief submitted in the NAF lawsuit last week echoes these findings and resoundingly makes the same point: Daleiden is not an investigative reporter. The main arguments in the brief boil down to the following, which can be understood as the pillars of investigative journalism:

  • Reporters do not falsify or distort evidence. Daleiden spliced and manipulated his videos and transcripts to give the false impression that they captured illegal conduct. A reporter’s job is to uncover and convey the truth, not to concoct false claims and peddle them as facts.
  • Reporters must use deception as a last resort, not a first resort, if they use it at all. Any use of deception—even in the service of obtaining the truth—tends to undermine the public’s trust in any of the reporter’s work. For this reason, even investigations that have uncovered serious abuses of power are often criticized, if not condemned, by the profession if they have obtained their information through deceptive means. As the brief noted, in 1978, the Chicago Sun-Times was barred as a finalist from the Pulitzer Prize because the truth it exposed was obtained through elaborate deception—Sun-Times reporters opened a bar called The Mirage for the purposes of documenting very real public graft. No one doubted that the evidence they found was both true and of great public importance. But, led by Ben Bradlee, the journalism establishment rejected the Sun-Times’ use of deception because of the long-term damage it would cause to the profession.
  • Reporters follow the law. Daleiden and his co-conspirators created fake government identification which they used to gain access into private events. No legitimate news organization would permit their reporters to take such steps.
  • Reporters do not deceive subjects into making statements to support a “predetermined theory.” Daleiden used alcohol to try to manipulate subjects into using words and phrases that he believed would sound bad on tape. Real journalists try to report against their own biases, instead of manufacturing evidence to prove their own theories.
  • Reporters seek to highlight or prevent a harm to the public. Daleiden caused great harm but exposed none.

A point that wasn’t mentioned in the legal filings is that Daleiden failed to follow a rule that student journalists learn in their first weeks of school: You must afford the subject of your reporting a full opportunity to respond to the allegations made against them. Daleiden’s videos came as a surprise attack against Planned Parenthood and NAF (but not, apparently, to certain Republican members of Congress). No reputable reporter would conduct herself in such a fashion. That is an ambush, not an article.

To many readers, these arguments may seem academic. But the reality is that real reporters take their obligations more seriously than the public might realize, to the point of risking—and sometimes losing—their lives in the service of this job, which many consider to be a calling.

One of the best investigative reporters of my generation, A.C. Thompson of ProPublica, recently reported on a group of assassins that operated on U.S. soil in the 1980s, who murdered Vietnamese-American journalists for political reasons.

To report that story, Thompson attended events held by members of the groups he believed to be linked to—or were actual parts of—these networks of killers. He did phone interviews with them. He met with them in person. And he did all of that on camera, using his real name.

Make no mistake: Thompson potentially put his life at risk to do this work, but he did it because he believed that these men had been able to murder his fellow reporters with impunity, and with possible—if tacit—support from the U.S. government.

Contrast that to Daleiden’s conduct. As noted in the legal brief:

Daleiden may think Planned Parenthood kills babies, but there was no risk whatsoever that its managers would have killed him, or even slapped him, if he approached them openly.

Daleiden’s arguments are, in some ways, the natural extension to the existential crisis that gripped journalism more than a decade ago, with the rise of blogging. What followed was a years-long debate over who could be labeled a “journalist.” The dawn of smartphones contributed to the confusion, as nearly anyone could snap a photo and publish it via Twitter.

It is therefore a tonic to read these clear defenses of the “what” and “why” of investigative journalism, and to see luminaries of the field explaining that journalism is a discipline with norms and rules. When these norms are articulated clearly, it is easy to show that Daleiden’s work does not fall within journalism’s bounds.

At times like this, the absence of David Carr’s raspy voice makes itself painfully felt. One can only imagine the field day he would have with Daleiden’s pretensions to be committing acts of journalism. Judging by this legendary exchange between Carr and Shane Smith, one of the founders of VICE news, from Page One, the 2011 documentary about the New York Times, Carr would not have minced words.

The exchange came after Smith’s self-aggrandizing assessment of his team’s work covering Liberia—where they uncovered cannibalism and a beach that locals were using as a latrine—and then mocked the New York Times’ coverage of the country.

Here’s Carr:

Just a sec, time out. Before you ever went there, we’ve had reporters there reporting on genocide after genocide. Just because you put on a fucking safari helmet and went and looked at some poop doesn’t give you the right to insult what we do.

To paraphrase: Just because Daleiden got some hidden cameras and editing software, and called himself a reporter, doesn’t mean he was doing journalism.

It’s important that both the public and the courts recognize that reality.

Disclosures: A.C. Thompson is a former colleague of the author. The author also appeared, extremely briefly, in the Page One documentary. 

News Human Rights

Advocates: Trans Woman’s Killer Getting 12 Years in Prison ‘Not a Win’ for Trans Community

Kanya D’Almeida

Twenty-two trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims were people of color, mostly trans women of color, according to national statistics.

James Dixon, 25, will be sentenced to 12 years in prison for beating to death a 21-year-old Black trans woman, Islan Nettles, in August 2013 in New York City.

The sentencing date comes two weeks after Dixon pleaded guilty to the top count of the New York State Supreme Court’s indictment against him—manslaughter in the first degree—following the revelation that his 2013 videotaped confession to prosecutors would be admitted as evidence into a jury trial.

Dixon would have faced a 17-year prison term if the jury had found him found guilty.

“With this conviction, James Dixon has finally been brought to justice for this brutal and lethal assault,” Manhattan District Attorney Cyrus R. Vance said in an April 4 statement. “Members of the transgender community are far too often the targets of violent crime. I hope that this conviction provides some comfort to Ms. Nettles’ family and friends.”

Advocates and organizers, however, say the opposite is true.

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“This is not a win for the trans community,” Lourdes Hunter, co-founder and national director of the TransWomen of Color Collective (TWOCC), told Rewire in a phone interview. “James Dixon going to jail will not stop trans murders, it will not bring Islan Nettles back, it will not bring peace to Delores Nettles [Islan’s mother], who for many years sat in anguish as the murderer of her child roamed the streets due to the negligence of the New York Police Department and the New York District Attorney.”

Nettles was attacked just after midnight on August 17, 2013, when she and her two friends encountered a group of about seven men, including Dixon, in West Harlem, according to reports. Dixon, per those reports, stated in his confession that he had flirted with Nettles until his friends pointed out that she was transgender.

He says he then flew into “a blind fury,” first punching Nettles in the face and then striking her a second time while she lay on the sidewalk.

Accounts of the murder vary, with eyewitnesses and prosecutors claiming Dixon punched her several times and even slammed her head against the concrete pavement. Those allegations are confirmed by the New York District Attorney’s office, which concluded that Dixon “repeatedly struck the victim with a closed fist, causing serious brain injury, before fleeing the scene.”

Nettles’ mother, Delores, claims the assault rendered Nettles unrecognizable. At a protest in 2014 she blasted New York City officials for failing to send a detective to the hospital where Nettles lay in a coma; Delores stated, “half of my child’s brain is hanging out of her head,” according to the Washington Post.

Nettles was declared brain dead on August 20, and taken off mechanical support a few days later. Her death prompted large and sustained protests in New York City, including vigils and rallies that drew hundreds of people.

“Nettles was killed at an interesting time: The start of what we’re now seeing to be a more visible national trend in awareness and conversations about trans murders,” Shelby Chestnut, co-director of community organizing and public advocacy with the New York City-based Anti-Violence Project (AVP), told Rewire in a phone interview.

Citing data collected by the AVP, which is the only national organization to track lethal violence against the trans community, Chestnut told Rewire that 22 trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims, she said, were people of color, mostly trans women of color.

Keyonna Blakeney, a 22-year-old Black trans woman, was murdered Saturday in Montgomery County, Maryland. An AVP spokesperson told Rewire that Blakeney is the ninth trans woman to be killed in 2016.

Chestnut told Rewire that Nettles’ death had a deep impact on the community because “the rest of the world sees New York City as a safe haven for LGBT people, but in fact its no different from anywhere else—trans people are still subjected to violence, and in some cases death, simply because of who they are.”

Chestnut said Dixon’s confession invokes what’s called the “trans panic defense”—a legal tactic used to convince judges or juries that a victim’s sexual identity both explains and excuses a perpetrators’ “loss of self-control” and resulting assault. This type of defense has been outlawed in California, and the American Bar Association has called on other states to ban it as well.

“Sadly the media has been focusing on this so-called panic defense, which adds to a really terrible, transphobic narrative that there is something fundamentally wrong with being trans when in fact there is nothing wrong with it,” Chestnut added.

Both Chestnut and TWOCC’s Hunter agree that locking Dixon up will not stem the tide of violence against the trans community, since mass incarceration has proved to be an outright failure in terms of preventing crime.

“Sending someone to prison is not ‘justice,'” Chestnut said. “We need to address the bigger, systemic issue, which is: Why is violence like this allowed to permeate our society? And how are we investing in modes of prevention and education for everyone, so that a young, trans women of color can walk down the street and not be killed simply for who she is?”

“In the United States the life expectancy of a trans woman of color is less than 35 years,” Hunter added. “We can no longer ignore that state-sanctioned violence, including [that] the denial and lack of access to jobs, housing, and health care is inextricably linked to the physical violence we face every day. If you don’t have a job and can’t pay your rent, you may be forced to engage in activities for survival that further endanger your life.”

Ten percent of 6,400 transgender adults interviewed for a national survey had engaged in survival sex work between 2008 and 2009, a number that rose to 33.2 percent among trans Latino/a respondents and 39.9 percent among Black respondents, as Rewire has reported.

Trans communities experience disproportionate rates of homeless and incarceration, with 47 percent of Black transgender people having experienced incarceration.

Nettles had been forging a pathway for herself out of this cycle of poverty and violence when she was killed. Hunter said Nettles had just moved into her first apartment, was attending school, holding a steady job, and was an active member of the community, even volunteering at a local homeless shelter—all of which may have contributed to the wave of protests that followed her death.

“There are all these ‘respectability politics’ involved in narratives around trans lives,” Hunter told Rewire. “For instance, Nettles was not engaging in street-based sex work or trying to ‘trick’ people about her identity; when Dixon questioned her, she proudly affirmed that she was trans. Basically she did not fit easily into the stereotyped narrative that the media likes to present about trans women.”

Hunter said a broad coalition of local advocates supported justice for Nettles and her family members. While these advocacy efforts almost certainly played a role in pushing the District Attorney’s office toward a resolution of the case, Hunter says it’s important to fight back against the notion of “respectability.”

“We need to stand up and fight for all trans lives, not just the ones that are deemed ‘respectable,’ because no trans person deserves to die,” Hunter said. “Given the historical lack of [effort] to bring closure to these heinous crimes, the only appropriate response for D.A. Vance is to launch a concerted effort to re-open all cold cases of trans murders in New York City.”

“This is why we say ‘Not One More,’” Hunter said, referring to TWOCC’s video campaign. “At the core of this campaign is the message that we cannot be silent, we cannot wait until a trans woman of color is murdered to celebrate who we are and raise awareness and visibility around our lives, and around the women whose lives were taken away without them being able to experience the happiness and joy that is entitled to all of us as humans.”