Ruling Expands Scope of Rape

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.