State Court Defines RapeIn case you didn't see it in today's SJ Mercury News
Posted on Mon, Jan. 06, 2003
State court defines rape
RULING: WOMAN MAY WITHDRAW CONSENT AT ANY POINT
By Michelle Guido
The California Supreme Court on Monday created one of the country's toughest standards on what constitutes rape, ruling that if a woman withdraws consent at any point during sex but her partner refuses to stop, it becomes rape.
The decision removes one of the last gray areas on a woman's right to say no. Rape crisis counselors hailed the ruling, saying it sends a bold message -- especially to young women who are sometimes confused about whether they can change their minds once a sex act is under way.
The 6-1 decision clears up conflicting definitions that California courts have grappled with in recent years. In 1985, an appellate court ruled that continuing after consent has been withdrawn during intercourse doesn't constitute rape, but in 2000, another California appellate court ruled that it did.
``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,'' Justice Ming W. Chin wrote in Monday's ruling.
Supreme courts in at least five other states have ruled it is rape if a woman withdraws consent at any time and her partner doesn't stop. But women's advocates caution that, particularly in rape cases in which the victim knows her offender, juries still will be faced with the difficult task of deciding whom to believe when it comes to consent.
``I think it could be a pretty huge ruling, but I don't know how many people will run with it because it might be challenging to prove withdrawn consent in court,'' said Lara Aziz, client services coordinator for the YWCA in Santa Clara Valley. ``It's hard enough to prove cases that seem like slam dunks because a lot of blame still lies with the victim.''
Still, she said, the ruling could help rape-prevention educators clarify the issue, particularly for young women.
El Dorado County case
In the case out of El Dorado County, a 17-year-old girl initially consented to have sex with a 17-year-old boy at a party. After intercourse had begun, she resisted and told the boy that she had to go home. He repeatedly asked her to ``give me some time,'' but she kept saying, ``No, I have to go home.'' He did not stop until several minutes later. He was found guilty of rape and sentenced to spend time at a youth ranch.
The justices upheld that decision, finding the girl ``withdrew her consent and, through her actions and words, communicated that fact.''
But the ruling still failed to define when the boy should have stopped, wrote Justice Janice Rogers Brown in a dissenting opinion.
``Ten seconds? Thirty? A minute? Is persistence the same thing as force?'' she wrote. ``And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?''
The issue of withdrawing consent comes up most often in cases of date rape -- in which a victim knows her offender -- and among high school or college-age women.
Young women are often confused about whether they can back out once things get heavy, said Jeanne Zeamba, a health educator at Santa Clara University who is developing a program for students to counsel other students on issues such as rape and sexual assault.
``Sometimes women seem a little surprised that they do have that power -- the power to say no at any time,'' she said.
Monday's ruling might drive home that point, said Nicole Aeschleman, 22, a law student at Santa Clara University who participated in the peer program.
``It's really important for women to know that if you change your mind and say this is not something I want to go through with, the law will back you up,'' she said. ``If we can get the word out that no matter when it happens -- it doesn't matter at what point you say no -- if he doesn't stop, that's rape.''
Legal conflict resolved
Deputy Attorney General John McLean called the Supreme Court's ruling a ``common-sense opinion.''
``This is making absolutely clear that when consent is withdrawn after an act begins, that's still going to be rape,'' he said.
Carol Foster, a Sacramento attorney for the boy in the case, said she was disappointed with the decision because she believed that once the victim consented, her client ceased in a ``reasonable'' amount of time.
``What does the law say, is he to stop that split second?'' Foster said. ``I was looking for the court to go further in the definitions of these questions because I think they are going to come up in future cases.''
But she said the ruling did resolve the conflict of law that has existed in California.
It's about time for such a progressive state on women's issues, said Gina McClard, associate director of the National Crime Victim Law Institute in Portland, Ore.
``Today's opinion is so important for the women of California, in fact women everywhere, because it upholds the sanctity of a woman's body,'' she said. ``In essence, the court has established a rule of law that `no means no.' ''