|F*(k the feminists||Funston|
Jan 8, 2003 9:00 PM
|One minute I'm making consensual love, the next minute I've suddenly become a felon....
thanks to a ruling by the California courts wihich have judged that during consensual intercourse if the woman decides she's had enough but the man continues, he's then fallen into a rape situation.
stop the world, I want to get off...
|gee.... complying with crys of "stop" is really tough.. (nm)||sctri|
Jan 8, 2003 11:45 PM
|why shouldn't it?||DougSloan|
Jan 9, 2003 7:15 AM
|First of all, I doubt this will come up very often.
Second, the ruling, which I have not read, is likely a consistent interpretation of existing law. If rape is someone having sex with you against your will, then, if the woman wants it terminated and you don't stop, it is meeting the definition at that point. Heck, for all you know, she has a damn good reason to want to stop, like pain; who knows? It's not your (the man's) call. I think you'd want it the same way.
Third, these things are always ultimately up to the determination of a jury; the victim and prosecution is going to have to convince them that there was a crime committed beyond a reasonable doubt. The jurors will likely consider all the circumstances. If a woman brings a complaint about this just after she leaves here husband and there is a huge custody and property battle going on, her credibility will be lessoned. On the other hand, if a woman brings a complaint about this happening on a first date in which she had a few too many drinks, and sort of came to her sense amidst the act, it might be completely credible.
So, I don't think you have to worry. It's really pretty simple. She says stop; you stop. No big deal. How important is any one act of sex to you, anyway? If you are worried about this, Houston, you may have a problem.
|by your definition of rape....||Funston|
Jan 10, 2003 1:34 PM
|i ...rape is someone having sex with you against your will...
By that definition, could one say that a verbally abusive wife would be considered to be raping her husband if he fully detested her, didn't want sex with her, but did it anyway because he succumbed to her mental cruelty?
|here's the opinion||DougSloan|
Jan 9, 2003 7:26 AM
|[slight non-substantive editing to conserve space]
In re JOHN Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOHN Z., Defendant and Appellant. S103427
SUPREME COURT OF CALIFORNIA
2003 Cal. LEXIS 2
January 6, 2003, Filed
OPINION: We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape (Pen. Code, § 261 [*2] , subd. (a)(2)) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal. App. 3d 237, 218 Cal. Rptr. 161 (Vela) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846, 91 Cal. Rptr. 2d 921 (Roundtree) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that 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.
The juvenile court, after holding a contested jurisdictional hearing on a unitary petition (Welf. & Inst. Code, §§ 602, 777, subd. (a)) filed on behalf of John Z. (defendant), found that he committed forcible rape (Pen. Code, § 261, subd. (a)(2)) and that his previous juvenile court disposition had been ineffective. (Further undesignated statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch. On [*3] appeal, defendant contends the evidence is insufficient to sustain the finding that he committed forcible rape. We disagree.
The following facts are largely taken from the Court of Appeal opinion in this case. During the afternoon of March 23, 2000, 17-year-old Laura T. was working at Safeway when she received a call from Juan G., whom she had met about two weeks earlier. Juan wanted Laura to take him to a party at defendant's home and then return about 8:30 p.m. to pick him up. Laura agreed to take Juan to the party, but since she planned to attend a church group meeting that evening she told him she would be unable to pick him up.
Sometime after 6:00 p.m., Laura drove Juan to defendant's residence. Defendant and Justin L. were present. After arranging to have Justin L.'s stepbrother, P. W., buy them alcohol, Laura picked up P. W. and drove him to the store where he bought beer. Laura told Juan she would stay until 8:00 or 8:30 p.m. Although defendant and Juan drank the beer, Laura did not.
During the evening, Laura and Juan went into defendant's parents' bedroom. Juan indicated he wanted to have sex but Laura told him she was not ready for that kind of activity. [*4] Juan became upset and went into the bathroom. Laura left the bedroom and both defendant and Justin asked her why she "wouldn't do stuff." Laura told them that she was not ready.
About 8:10 p.m., Laura was ready to leave when defendant asked her to come into his bedroom to talk. She complied. Defendant told her that Juan had said he (Juan) did not care for her; defendant then suggested that Laura become his girlfriend. Juan entered the bedroom and defendant left to take a phone call.
When defendant returned to the bedroom, he and Juan asked Laura if it was her fantasy to have two guys, and Laura said it was not. Juan and defendant began kissing Laura and removing her clothes, although she kept telling them not to. At some point, the boys removed Laura's pants and underwear and began "fingering" her, "playing with [her] boobs" and continued to kiss her. Laura enjoyed this activity in the beginning, but objected when Juan removed his pants and told defendant to keep fingering her while he put on a condom. Once the condom was in place, defendant left the room and Juan got on top of Laura. She tried to resist and told him she did not want to have intercourse, but he was to
|here's the opinion||DougSloan|
Jan 9, 2003 7:28 AM
|too strong [*5] and forced his penis into her vagina. The rape terminated when, due to Laura's struggling, the condom fell off. Laura told Juan that "maybe it's a sign we shouldn't be doing this," and he said "fine" and left the room. (Although Juan G. was originally a codefendant, at the close of the victim's testimony he admitted amended charges of sexual battery ( § 243.4) and unlawful sexual intercourse ( § 261.5, subd. (b)), a misdemeanor.)
Laura rolled over on the bed and began trying to find her clothes; however, because the room was dark she was unable to do so. Defendant, who had removed his clothing, then entered the bedroom and walked to where Laura was sitting on the bed and "he like rolled over [her] so [she] was pushed back down to the bed." Laura did not say anything and defendant began kissing her and telling her that she had "a really beautiful body." Defendant got on top of Laura, put his penis into her vagina "and rolled [her] over so [she] was sitting on top of him." Laura testified she "kept . . . pulling up, trying to sit up to get it out . . . and he grabbed my hips and pushed me back down and then he rolled me back over so I was on my back . . . and . . . kept saying, [*6] will you be my girlfriend." Laura "kept like trying to pull away" and told him that "if he really did care about me, he wouldn't be doing this to me and if he did want a relationship, he should wait and respect that I don't want to do this." After about 10 minutes, defendant got off Laura, and helped her dress and find her keys. She then drove home.
On cross-examination, Laura testified that when defendant entered the room unclothed, he lay down on the bed behind her and touched her shoulder with just enough pressure to make her move, a nudge. He asked her to lie down and she did. He began kissing her and she kissed him back. He rolled on top of her, inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him. She was on top of him for four or five minutes, during which time she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop. He said, "just give me a minute," and she said, "no, I need to get home." He replied, "give me some time" and she repeated, "no, I have to go home." Defendant did not stop, [*7] "he just stayed inside of me and kept like basically forcing it on me." After about a "minute, minute and [a] half," defendant got off Laura.
Defendant testified, admitting that he and Juan were kissing and fondling Laura in the bedroom, but claimed it was with her consent. He also admitted having sexual intercourse with Laura, again claiming it was consensual. He claimed he discontinued the act as soon as Laura told him that she had to go home.
Although the evidence of Laura's initial consent to intercourse with John Z. was hardly conclusive, we will assume for purposes of argument that Laura impliedly consented to the act, or at least tacitly refrained from objecting to it, until defendant had achieved penetration. (But see § 261.6 [defining the type of consent at issue under section 261 as "positive cooperation in act or attitude pursuant to an exercise of free will"].) As will appear, we conclude 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.
Vela, supra, 172 Cal. App. 3d 237, [*8] held that where the victim consents to intercourse at the time of penetration but thereafter withdraws her consent, any use of force by her assailant past that point is not rape. ( Id. at pp. 242-243.) The court in Vela found "scant authority" on point ( id. at p. 241), relying on two out-of-state cases which had held that if consent is given prior to pe
|here's the opinion||DougSloan|
Jan 9, 2003 7:29 AM
|penetration, no rape occurs despite the withdrawal of consent during intercourse itself. (See Battle v. State (Md. 1980) 287 Md. 675, 414 A.2d 1266, 1268-1270; State v. Way (N.C. 1979) 297 N.C. 293, 254 S.E.2d 760, 762.) According to Vela, these cases held that "the presence or absence of consent at the moment of initial penetration appears to be the crucial point in the crime of rape." ( Vela, supra, 172 Cal. App. 3d at p. 242.)
Vela agreed with these cases, reasoning that "the essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation [*9] of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood. It would seem, therefore, that the essential guilt of rape as stated in . . . section 263 is lacking in the withdrawn consent scenario." ( Vela, supra, 172 Cal. App. 3d at p. 243.)
With due respect to Vela and the two sister state cases on which it relied, we find their reasoning unsound. First, contrary to Vela's assumption, we have no way of accurately measuring the level of outrage the victim suffers from being subjected to continued forcible intercourse following withdrawal of her consent. We must assume the sense of outrage is substantial. More importantly, section 261, subdivision (a)(2), defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [*10] . [P] . . . 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." Nothing in section 261 conditions the act of rape on the degree of outrage of the victim. Section 263 states that "the essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." But no California case has held that the victim's outrage is an element of the crime of rape.
In Roundtree, supra, 77 Cal. App. 3d 846, the court recognized that, by reason of sections 261 and 263, "the crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim's will. The outrage to the victim is complete." ( Roundtree, supra, 77 Cal. App. 3d at p. 851.) Roundtree cited several cases from other states either criticizing Vela or reaching a contrary [*11] conclusion. (See State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865; State v. Jones (S.D. 1994) 521 N.W.2d 662, 672; State v. Siering (Conn.Ct.App. 1994) 35 Conn. App. 173, 644 A.2d 958, 963; State v. Robinson (Me. 1985) 496 A.2d 1067, 1071; see also McGill v. State (Alaska Ct.App. 2001) 18 P.3d 77, 84 [Vela's view that sexual assault statute is based on considerations of " 'outrage' " to victim's " 'womanhood' " represents "archaic and outmoded social conventions"]; Note, Post-Penetration Rape--Increasing the Penalty (1991) 31 Santa Clara L.Rev. 779, 804-808 [criticizing Vela and advocating legislation to punish forcible and nonconsensual postpenetration intercourse as second degree rape].)
As the Court of Appeal in this case stated, "while outrage of the victim may be the cause for criminalizing and severely punishing forcible rape, outrage by the v
|too long - put on website||DougSloan|
Jan 9, 2003 7:32 AM
|I'll just post it at my website:
|thanks Doug||rollo tommassi|
Jan 9, 2003 9:28 AM
|very good reading, and a terrible story.|
|if you're at the dentist||rollo tommassi|
Jan 9, 2003 7:36 AM
|and he's pulling a tooth, and it really hurts and you've changed your mind about the procedure, where is the end of consent? with you or the dentist?
NO means NO.
|good analogy nm||DougSloan|
Jan 9, 2003 7:37 AM
Jan 9, 2003 8:30 AM
|consensual sex is different from dental work done by a doctor to a client where you are paying for their services.|
Jan 9, 2003 8:42 AM
|The point is that consent can be withdrawn. It is not irrevocable.
Ask you this -- say the woman consents to sex with you at 9 p.m. You complete the act. At 11 p.m. you are ready again, but she says "no." Yet, you force her to. Rape?
Jan 9, 2003 2:00 PM
|also sex shouldn't hurt...unless you're into that ;)||ColnagoFE|
Jan 9, 2003 9:14 AM
|reminds me of the scene at the dentists office in the movie version of little shop of horrors where steve martin gets upset at bill murray for enjoying the pain he's delivering to his mouth.|
|consent is consent||rollo tommassi|
Jan 9, 2003 9:27 AM
|whether by verbal or written agreement. i'm not trying to confuse remunerative retail agreements with emotional personal communication, but if i'm in pain or so uncomfortable that i'm wishing the dentist would stop, he better well do what i say! if his credo is to do no harm, he needs to respect the patients' rights in regards to their body.|
|still a bad analogy||Funston|
Jan 9, 2003 1:59 PM
|one important difference between the two scenarios is that one is an unequal level, doctor/patient (professional/client) relationship, backed up with insurance and other legal safeguards that are relatively clear cut; the other is an equal level relationship that has reached a "heat of passion" level, a special circumstance. That the passion level was reached from a consensual point of view makes it an entirely different situation than had it not been consensual; to categorize both situations equally as rape is not only wrong from a draconian point of view, but it can only serve to water down the serious nature of rape as a crime.|
|I never equated dentistry to rape||rollo tommassi|
Jan 10, 2003 9:03 AM
|I'm only talking about consent.
And I certainly don't feel "unequal" to any doctor or professional from whom I am getting service.
I'm not clear what you mean by an "equal level relationship" and how a 'heat of passion' leads to a 'special circumstance'. Tell me more?
It seems to me that it has been the defense of 'it was a special circumstance' that enabled some men to get away with rape in years past.
|lets cut to the chase||Funston|
Jan 10, 2003 10:38 AM
|so if the woman who has assumed a top position continues to grind away after the man asks her to stop, has this become a situation where she is raping him?
and if the young college grad, seduced to the point of oral sex by Mrs. Robinson, comes to his senses and tells her to back off, but she doesn't, what crime should she be charged with?
and if the President, who doesn't want to reach climax, tells Monica to back off, but she doesn't, and brings him to climax against his wishes, with her blue dress getting soiled in the process, would you say she has committed a felony also?
You know, maybe this ruling wonn't be so bad for men after all.
Jan 10, 2003 6:00 PM
|yes, she is raping him. he has withdrawn consent.
I doubt that Clinton would ever say 'no' though! ;)
As for Monica, a red dress is more appropriate.
I think this ruling should be good for both sexes; we must retain the rights to our bodies, be it for sex or dna testing.
|then the 1/2 pulled tooth gets infected and you die (nm)||Bruno S|
Jan 9, 2003 10:34 AM
|you implying some sort of analogy? :-) nm||DougSloan|
Jan 9, 2003 10:44 AM
|Is anybody else surprised we're even discussing this?||cory|
Jan 9, 2003 8:16 AM
|She says Stop, you stop. Exactly where is the issue here?|
|may want to read the opinion?||DougSloan|
Jan 9, 2003 8:29 AM
|The opinion sets out the opposing arguments, which have bases in some very ancient common law.
But, I agree with your sentiment.
|not an issue to be swept under the carpet||Funston|
Jan 9, 2003 9:09 AM
|I can think of several issues. One issue is the arbitrary nature of such a law. With no guidelines as to how long can you continue before you've become a felon, it has the potential to empower angry women to (ab)use the system, and puts the sword of public humiliation over the heads of decent, law-abiding men. In cases of no physical injury, it turns into a he said, she said situation where the man loses out no matter what. If a case like this was to come up, his name would be smeared across the newswires as an accused rapist, while she would remain anonymous - you're a journalist, what's the policy of your paper on this issue? Will her name get equal billing in the newspapers if he is found innocent?
A side issue is, should feelings be protected by law? I wish Doug could list out the laws that exist to primarily do just that.
So, if she says stop, but you don't stop right away. She's not hurt, but she gets pissed at you anyway. The penalties should fit the crime.
|I suppose there are women out there that would take advantage||ColnagoFE|
Jan 9, 2003 9:20 AM
|I would imagine they are in the minority though and such cases would be rare. Bottom line. If she says "no" or "stop" then listen to her. Wonder how this would play out in homosexual relationships? Does it have to be man/woman, or could it be man/man, woman/woman or, stranger yet, where the man says "no" to a woman--you'd think to be fair it wouldn't matter who said no, right?|
|man says "no" to woman?||DougSloan|
Jan 9, 2003 9:23 AM
|Now you're talking pure fantasy and speculation.|
|yeah very unlikelt...but it COULD happen||ColnagoFE|
Jan 9, 2003 9:30 AM
|Of course the scenario would have to involve something other than intercourse as the mechanics of the male anatomy would not usually cooperate with unwanted intercourse. Then again with certain "marital aids" at a woman's (or group of women's) disposal I can imagine it is possible for a woman to rape a man. I'll think I'll leave it at that...but I'd be surprised if something like this has never happened in the history of mankind.|
|and here's how||Funston|
Jan 9, 2003 2:06 PM
|drunk woman on top, grinding away, harder and harder, your pelvis bone ready to give out, your pubes stretched to their limits (oh why did I stop shaving at my thighs), you're screaming stop! stop!, she's screaming not yet!, not yet!..... aaaahhhh! you say, as she's trying to reach the peak....|
|and you have a problem with that? nm||DougSloan|
Jan 9, 2003 2:10 PM
|depends on how much money she has (nm)||Funston|
Jan 9, 2003 2:16 PM
|Ahem ... yes, it's happened. -nm||McAndrus|
Jan 9, 2003 1:40 PM
|so you are really concerned about false accusations||DougSloan|
Jan 9, 2003 9:22 AM
|It seems you really don't have an issue with the principle of "stop means stop."
You are concerned about issues of proof and false accusations. If that's the case, we can limit the discussion to those legitimate concerns.
The act of penetration is, indeed, more black and white than stopping after penetration. Nonetheless, the prosecution always bears the burden of proof; plus the jury is usually sort of the conscience of society, and would understand the practically difficulties of stopping instantly in certain situations, I'd bet. I think the woman's credibility is always at issue, here as in at least a more equivalent date rape situation (versus a stranger forcible rape).
False accusations are always a concern, but that doesn't mean we relax the law simply to avoid them. All we can do is hope the system works.
|Dude, those are some truly scary comments||Kristin|
Jan 9, 2003 9:03 AM
|Do you really hear what you are saying? If you changed your mind in the middle of sex (which could happen for a million reasons--though doubt you'll be able to imagine even one of them) and wanted to stop, how would you feel if you were refused???? I think the scariest part is that your statement leaves me with the impression that you wanted to continue having sex with someone who didn't want to be there with you and was actively asking you to stop. "No, please stop, no..." Yeah, that's a real turn on.
Besides you haven't given any circumstances here. Why did she change her mind and want out in the first place?
|I take back part of what I said||Kristin|
Jan 9, 2003 9:10 AM
|"which could happen for a million reasons--though doubt you'll be able to imagine even one of them..."
In reality, I'm sure you are able to think of at least one situation that might make you change your mind about having sex with a person (even during the act). The question is, do you want to? It could be a useful tool, if you are willing to put yourself in the other person's shoes and try to imagine it from their perspective.
|If you read the opinion Doug posted||OldEdScott|
Jan 9, 2003 9:40 AM
|it's not an instantly clear cut case. Unless you want to sign contracts before and during sex, a lot of things are implied, hinted at, uncertain. Permissions are granted tacitly. Things get confusing. How many of us, especially during adolescence, have followed the Antioch College model, where you have to explicitly ask and receive explicit permission before doing anything whatsoever. ("May I now kiss your neck? "Yes, you may." "OK, now may I touch ..."). It's PC, but it's not too realistic.
This girl kept saying "I have to go home," not "No, don't do that, I withdraw permission." Sure no means no, but it's up in the air whether "I have to go home," means no. It might just mean, hurry up.
That said, this is a serious issue, and Funston's 'F'(k the feminists' subject line and comments were Neaderthal, to say the least.
|the dissent is interesting||DougSloan|
Jan 9, 2003 10:10 AM
|The Dissent does show the difficulties the judges deal with when interpreting the facts of a given situation that is not clear cut. While nearly everyone can agree in principle in the abstract, it's the gray areas that cause concern, particularly when a defendant's freedom is at risk.
While "no" or "stop" always mean just that, silence and statements like "I need to go" are diffucult to interpret, especially during the event.
So, I think this case does show the diffulties of the issues, as several judges could not even agree on the outcome, even if the did agree to the principles involved.
|the dissent is interesting||rollo tommassi|
Jan 9, 2003 1:30 PM
|I wonder if the fact that this was a Juvenile case may have tilted the opinion of the court one way or another?|
|maybe the dissent||DougSloan|
Jan 9, 2003 2:14 PM
|The problem is the majority is laying down law equally applicable to adults. So, I don't think the juvenile (almost adult, though) nature of it mattered that much.
I detected the dissent cutting a little slack because of the youth involved. It wasn't very overt, though.
The issue is relevant to the defense, though. A defense is that the defendant did not reasonably believe consent was withdrawn (paraphrase); you might expect less or different "reasonableness" from a 17 year old than you might a 30 year old.