What are your thoughts on the following California Supreme Court Ruling?

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Court: Rape Can Occur Even After Consent

Mike McKee
The Recorder
01-07-2003

When a woman says no to sex, even after intercourse has begun, a man had better pay attention.

On Monday, the California Supreme Court ruled 6-1 that it's rape if a man continues to have sex with a woman who originally consented but then changed her mind.

"We conclude," Justice Ming Chin wrote for the majority, "that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection."

In what she called a "sordid, distressing, sad little case," Justice Janice Rogers Brown dissented, saying the majority provided no guidance about what constitutes withdrawal of consent and what amount of force turns consensual sex into rape.

"The majority relies heavily on [the defendant's] failure to desist immediately," she wrote. "But it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?"

The case, out of El Dorado County, Calif., involved a March 2000 party at which 17-year-old Laura T. reluctantly engaged in sex with a minor identified only as John Z. The young woman claimed that John Z. had continued to have sex with her after she repeatedly asked him to stop.

"Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home," Justice Chin wrote. "According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and 'just stayed inside of me and kept like basically forcing it on me' for about a 'minute, minute and [a] half.'"

The high court's ruling upholds Sacramento's 3rd District Court of Appeal, and resolves a split in the law created by two competing appeals court rulings -- People v. Roundtree, 77 Cal.App.4th 846, and People v. Vela, 172 Cal.App.3d 237. Monday's opinion sides with Roundtree, a 2000 ruling by San Francisco's 1st District that said withdrawal of consent effectively nullifies any earlier consent, while disavowing Vela, a 1985 ruling by Fresno's 5th District that ruled the opposite.

In her dissent, Justice Brown accused the majority of ignoring "critical questions about the nature and sufficiency of proof in a post-penetration rape case" and argued that prosecutors should still have the burden of proving beyond a reasonable doubt that a victim clearly communicated withdrawal of consent, and the perpetrator exercised some degree of force.

She noted that the victim in John Z. had enjoyed the sex, had simply said she had to go and had never overtly told John Z. she didn't want to keep having sex.

"The majority finds Laura's 'actions and words' clearly communicated withdrawal of consent in a fashion 'no reasonable person in defendant's position' could have mistaken," Brown wrote. "But Laura's silent and ineffectual movements could easily be misinterpreted. And none of her statements are unequivocal."

Sacramento, Calif., solo practitioner Carol Foster, who represented John Z., could not be reached for comment Monday. Neither could Douglas Beloof, who argued part of the state's case before the California Supreme Court on behalf of the National Crime Victim Law Institute, an amicus curiae based in Portland, Ore.

However, Sacramento-based Deputy Attorney General John McLean, who also argued before the court, called the decision "a common sense ruling" that did away with a "minority view opinion" from the mid-'80s. He also said that despite Brown's dissent he thought the ruling was "pretty clear."

"There may be a need later on," he added, "for instructions to deal with specific situations."

The case is In re John Z, 03 C.D.O.S. 129.

She was with someone younger. It didn't state his age.

hmmmm now if it was a dude who was 17 with a 15 year old he would be accused of statutory rape, but according to above I guess that was never figured in...the fact that she should have never been having sex with the minor in the first place....but that doesn't condone his actions at all, if she really tried to stop him and he refused, but it's just interesting how things seem to play out....

The world is sad... where does it end?

My godson is 16 and his mother and I constantly warn him not to get into situations. He has so many girls calling him that his mom and dad have to tell them not to call.

I don't care...IF she told the dude to STOP...he should have stopped! Suppose he was doing something she did not like or was physically hurting her... because she initially said cool, does that mean he doesn't have to stop? My MOMMA told me if a girl say NO and even if you know in your heart it means yes, YOU TAKE IT AS NO!!!

according to another article i was reading, they both were the same age. it lists her as being 17 but didn't elaborate on whether the incident happened at the time or when they were BOTH 17.

i agree, if she changes her mind during sex, it is rape.

the defensive argued that she didn't say "no" but rather they she wanted or needed to go home. he replied, "give me a minute" and didn't immediatley get up. in fact, the judge concluded that it was more than a minute but more like 4 or 5 minutes.

No means no !
even if he was younger once she said stop
the sexual play should have stop it's RAPE!!!!!!!!!!!!!!!

I think the young man was wrong for continuing after she said stop, "but this is a gray area". It could go either way.

If I was the judge/jury, I would suggest counseling for her and counseling for him also. There are two sides to a story and the complete truth is somewhere in between.

yet even if she did say yes and into it she say STOP!
at that point the thrill is ova ....
he should have gotten up
i do agree she need help mostly
the young man was acting out his young manhood
upon her , he was kinda mislead to a factor
but it was RAPE !!!!!!

To me rape is rape..and it usually implies that one partner has been forced into a sexual act...I have a problem with her excuse for wanting him to stop...especially if it happened after he had begun the act...fear of pregnancy, no precaution, pain, discomfort, or just simply not wanting to have sex would be reasons to stop, but to say she had to go home...why didn't she take notice of the time and not let anything get started in the first place, that would make more sense...it seems like there is more to this story or it's a case of children playing grown-up games and finding out too late that they don't like playing them..

K

here's another report on this issue:


SAN FRANCISCO -- A man may be convicted of rape if his sexual partner first consents but later changes her mind and asks him to stop, the California Supreme Court ruled Monday.

In a 6-1 decision, the state high court said a man who continues sexual intercourse with a woman once she has retracted her consent can be charged with rape. The court ruled in a date rape case involving teenagers at a party in El Dorado County.

“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," Justice Ming W. Chin wrote for the court.

The court overturned a 1985 lower court ruling in California that declared a man cannot be charged with rape if the sex act began with the woman's consent. State high courts in Maryland and North Carolina also have embraced that view.

Deputy Atty. Gen. John G. McClean, who represented the prosecution, called the ruling a "common sense decision."

Douglas E. Beloof, a professor at Lewis & Clark College Law School in Portland, Ore., and the director of a national victims' rights group, called Monday's ruling "modern and progressive." "It means that a woman has complete choice over her sexual activity," said Beloof, director of the National Crime Victim Law Institute.

Carol L. Foster, lawyer for the defendant, had argued that males should be permitted "a reasonable amount of time" to end the sexual act once a partner objects. But the court said the law does not allow a male to persist once there is no longer consent.

Justice Janice Rogers Brown agreed with the overall ruling but dissented on its application to the case. She contended the victim did not clearly communicate her feelings, and the male did not use obvious force.

The court's decision stemmed from an incident in El Dorado County at a party in March 2000. Laura T., 17, agreed to drive a friend, Juan, to a party at the home of John Z. John's parents were not at home. Laura was the only female present. The males at the party, who were drinking beer, ranged in age from 16 to 21.

For a while, Laura spent time in a bedroom with Juan and John, who also were juveniles, who kissed her and partially disrobed her. At first, "she enjoyed the attention," according to the opinion. But she said that Juan then raped her. Juan eventually reached a plea agreement and admitted to sexual battery and unlawful sexual intercourse, a misdemeanor. He was part of Monday's case.

John, 17, also had sex with Laura and contended it was consensual. Laura, however, said she tried to end the intercourse and told him three times that she needed to go home. "Just give me a minute," John replied, according to the opinion.

She said she also told John he would not be "doing this" if he truly cared about her. She said he continued for about a minute and a half after her final protest.

"Kids and booze is a bad combination, and kids and booze and no parents around is a real bad combination," prosecutor McClean said.

A juvenile court found John had committed rape, and a Court of Appeal agreed. John appealed to the California Supreme Court.

"In the present case, he clearly was given ample time to withdraw but refused to do so despite Laura's resistance and objections," Chin wrote in People v. John Z., S103427. The court observed that John Z. continued the sex act for "at least four or five minutes after Laura first told him she had to go home."

Brown, in her dissent, said she agreed that "clear withdrawal of consent nullifies any earlier consent" and "forcible persistence" is rape. "A woman has an absolute right to say 'no' to an act of sexual intercourse," she wrote.

But Brown questioned whether Laura's statements "clearly communicated her withdrawal of consent" in what Brown described as "a sordid, distressing, sad little case." She noted that Laura had been openly affectionate with Juan during the evening and engaged in mutual kissing with John in a bedroom. Brown said Laura did not protest when the sexual act began and later admitted she had not "officially" told John she did not want sex.

"Laura's silent and ineffectual movements could easily be misinterpreted," Brown wrote. "While Laura may have felt these words clearly conveyed her unwillingness, they could reasonably be understood as requests for reassurance or demands for speed."

Sexual intercourse does not become rape "merely because a woman changes her mind," Brown wrote.

Brown wrote that force must be present, an issue that the majority did not directly address.

"All we know is that John Z. did not instantly respond to her statement that she needed to go home," Brown wrote. "He requested additional time. He did not demand it. Nor did he threaten any consequences if Laura did not comply."

Foster, John's lawyer, said John served several months at a youth facility for the rape. If John commits a felony as an adult, the rape could become a first strike and substantially raise the amount of time he would have to serve for the felony, she said.

Foster said she was disappointed with the decision because of the facts of the case.

"Now we know that a woman can withdraw her consent at any time during the act of sexual intercourse," Foster said.

Give me a break!

You have got to be kidding!

Regina and Thandiwe ... please don't post content that you do not own, unless you are including the copyright owner's permission with their property, Forum Rules (http://destee.com/forums/rules.php). Thanks Ladies.

:heart:

Destee

This is just not clear cut. I think it will be struck down on appeal.