Academic journal article Journal of Criminal Law and Criminology

No Means No? Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape

Academic journal article Journal of Criminal Law and Criminology

No Means No? Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape

Article excerpt

"[A] withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse." (1)

"John Z. wasn't guilty of rape; he was guilty of being male. If I were a guy, I'd find another country." (2)

INTRODUCTION

At approximately 6:30 P.M. on March 23, 2000, 17-year-old Laura T. left her job at a Safeway supermarket in El Dorado County, California and picked up Juan G., a young man whom she had met two weeks earlier. (3) Laura drove Juan to a "party" at a friend's house, where the only guests were the two of them and three of Juan's male friends. (4) All of those present, except Laura, were drinking beer. (5) At approximately 8:10 P.M., Laura was ready to leave, but she first agreed to join Juan and one of his friends, 16-year old John Z., in a bedroom of the house. (6)

Upon entering the unlit bedroom together, Laura, Juan, and John engaged in consensual sexual interaction, not including intercourse. (7) As the relations intensified, Juan put on a condom and John left the room. (8) At this point, Laura then began to object, but despite her physical resistance and pleas to the contrary, Juan forced Laura to have sexual intercourse. (9) After the rape terminated due to Laura's struggling, Juan left the room. (10) As Laura searched for her clothes in the dark bedroom, John entered the room with his clothes off. (11)

John asked Laura to lie down with him, and then began kissing her and telling her she had a "beautiful body" and that she should be his girlfriend. (12) Laura kissed John back, and John then climbed on top of Laura and put his penis inside of her. (13) The two engaged in sexual intercourse for approximately ten minutes, during which time Laura physically struggled with John. (14) Laura told John several minutes into the act that she "needed to go home"; John responded for Laura to "just give me a minute." (15) Twice more, Laura repeated: "No, I need to go home." (16) After Laura's objections, John continued to have sexual intercourse with her for approximately sixty to ninety seconds before discontinuing the act. (17) As Laura dressed and prepared to leave, John turned to her and said, "Well, I didn't rape you so you cannot call the cops." (18)

Rape is defined in California as "an act of sexual intercourse ... 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." (19) In the incident described above, Laura willingly entered the bedroom with Juan and John, took her clothes off and engaged in sexual foreplay with the two boys. (20) When John entered the room, she kissed him, lay naked on the bed with him, and expressed no objection when the two began engaging in intercourse together. (21) However, on January 6, 2003, the California Supreme Court held in a 6-1 opinion that John was a rapist. (22) In doing so, the court interpreted the state's rape statute to include situations where the victim initially consents to intercourse, but then withdraws her consent after penetration. (23)

Under the traditional common law definition of rape, the prosecution and conviction of John Z. would have been unthinkable. (24) However, California is one of seven states in which the courts have expanded the definition of rape to include the withdrawal of consent after penetration. (25) Additionally, in response to the John Z. decision, Illinois became the first state to pass a statute redefining "nonconsent" in sexual assault cases to include situations where consent is withdrawn after penetration. (26) The reforms in California and Illinois, combined with the sexual assault charges levied, and then subsequently dropped, in Eagle, Colorado, against NBA superstar Kobe Bryant, have focused an unprecedented amount of media attention on the issue of sexual assault and consent of the victim. …

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