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Rape After Consent to Sex, Part 2

Jay Caruso of The Daily Rant writes critically of a new law in Illiniois, reportedly the first in the country, that provides that if one partner changes his/her mind after intercourse has begun, and the other partner doesn't stop, it's rape.

To show how such a law can be misapplied, consider this California Supreme Court ruling in January, which we think borders on the ridiculous: A 17 year old female engaged in admittedly consensual intercourse with a juvenile teenage male. During the act, the female said she wanted to go home. She didn't say "stop" or "no," only that she wanted to go home. The juvenile male was convicted of rape, and the California Supreme Court upheld it.

The dissenting justice? Janice Rogers Brown, now nominated by Bush to the D.C. Circuit Court of Appeals, and considered to be a contender for a Supreme Court vacancy. Liberals oppose her as a Clarence Thomas clone. We have criticized her, for that and other reasons. But her dissent in this rape case is the only voice of sanity:

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, 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?"

Rogers Brown argued:

...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.

We agree that as a matter of legal principle, if prosecutors prove beyond a reasonable doubt that consent was withdrawn after the act begins. and that the withdrawal was clearly and unequivocally communicated to the partner, who then forcibly continued, it's rape. But that's a tough burden for prosecutors, and that's why they rightfully are reluctant to file such charges.

But we just can't see how "I want to go home" is a clear and unequivocal "no" or "stop" or "stop now" that a teenage boy is supposed to understand means a withdrawal of consent.

Update: We edited the post as to age. The girl was 17 not 19 as we originally said, and the boy was a juvenile, not necessarily 15.

We've re-read both the majority and dissenting opinion, and like Justice Rogers Brown, find the withdrawal of consent anything but clearly communicated by the young woman. Also, there was no force applied after she said she wanted to go home. Rogers Brown states the woman never said no. Because this was a juvenile case, there was no jury. It was decided by a judge. If the appellate judges can't agree on the facts, how can anyone say the standard of proof beyond a reasonable doubt has been met?

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  • Doesn't make sense... (none / 0) (#1)
    by Elliander on Wed Mar 12, 2008 at 03:27:43 PM EST
    I personally believe that while, yes, a woman (or a man) should have the right to say no during sex and expect her (or his) choice to be respected, it should not be confused with something that historically has been defined very differently.

    Much of the way the legal system is going about it just feels so wrong.

    In the case mentioned above, for example, I can easily see how someone in that situation can misunderstand what she meant. She did not clearly say no, and did not say in any context that she wanted it to stop, so I don't think that guy should have been considered at fault for anything unless there was reasonable evidence to suggest that he did know what she meant.

    But even in cases where a clear "no" and "stop" is voiced I still don't feel it should be called the same thing. This actually hurts both sides of the issue. On the one hand, it basically means the guy is being called "just as bad" as someone who abducts a woman, and violently forces himself onto her. On the other hand, it means the people who do this are "not as bad" as the guy who just didn't pull out fast enough. Someone is going to be treated unfairly, be it the person who wasn't punished hard enough, or the person who was treated too harsh.

    There is a real difference between attacking someone, and just not taking it out.

    Don't get me wrong. I think it is ALSO wrong to deny someone the right to withdraw consent. But I can't see how the two are even close to being the same.

    It also doesn't make legal sense for another reason. The law cannot be biased against any one gender. While not as common to happen and even less common to be reported, women do rape men. I, personally, have been with someone, and the angle was hurting ALLOT because the pelvis hit mine and I told her to stop. She didn't even hear me at first because she was so vocal. She then, of course, changes positions but I would never consider that rape. But what court would consider "I just didn't hear" a reasonable excuse?

    And what about people who are just into "Rape Fantasy" and Bondage, where the whole thing is role play. It can be very hard to tell the difference, in a situation like that, between a "No (continue)" and "no (I am not into it anymore)"

    There are just so many circumstances that says we need to define it as a totally different thing. Not every situation is black and white, and it just feels unjust to define as the same every kind of sexual "misdeed".

    We have many laws for different kinds of violence, where a person is judged for the SEVERITY of the crime. So why is it that, in sexual cases, all levels of severity are regarded as the same now?