the evolution of post-penetration rape law - Stetson University ...

File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM748 Stetson Law Review [Vol. 34These sparse statutory definitions often lead to social myths orattitudes influencing the outcome in individual acquaintance-rapecases. 145 Because all post-penetration rape cases will be nonstrangerrapes in which consent is the central issue, 146 the postpenetrationrape prosecutor will have to jump the same hurdlesthat any acquaintance-rape prosecutor does, and new hurdles aswell. 147 A hurdle is created because the victim gave, and then revoked,his or her willingness to have sex. People are “reluctant. . . to characterize forced sex as rape” when the man andwoman have been involved in a relationship before the purportedrape. 148 This is troubling in a revoked-consent scenario becauseboth parties consented to sexual intercourse, and the evidence ofa preexisting sexual relationship may bias jurors. 149 Allowing apreexisting relationship or initial consent to negate the possibilitythat forced sex occurred denies the progress of the reform movement,which protects each person’s right to say “no.” 150145. Bohmer, supra n. 136, at 322.146. Post-penetration rapes will always be nonstranger rapes because the victim presumablywill be acquainted the perpetrator for at least a brief moment before initiallyconsenting to intercourse. The Author does not mean to imply that all post-penetrationrape cases will involve individuals in a long-standing relationship.147. Id. at 321–322 (stating that “[t]he defendant’s assertions that he did not mean toforce the woman into sexual intercourse focus attention on the woman’s behavior” anddescribing the prosecution’s task as an “uphill battle” because proving nonconsent is difficult“[i]n the absence of circumstantial evidence or of very convincing testimony on thepart of the victim . . .”).148. Pillsbury, supra n. 6, at 876; John H. Biebel, Student Author, I Thought She SaidYes: Sexual Assault in England and America, 19 Suffolk Transnatl. L. Rev. 153, 163–164(1995) (stating that “[j]uries infer consent when a relationship exists between the defendantand complainant”). Factors that can impact that characterization include whether theparties were dating, whether they had previously engaged in sexual intercourse, and whatthe parties’ actions were at the time of the alleged rape. Id. Some of these factors mayrelate to credibility or mens rea.149. Pillsbury, supra n. 6, at 874. An Indianapolis defense attorney stated,In cases where identification is not an issue, consent becomes important. Thesecases are reasonably easy. The parties will have known each other—will have beentogether, drinking, dancing. I try to point out to the jury that even if she did changeher mind, it was in the middle of the act.Id. (citing Gary LaFree, Rape and Criminal Justice: The Social Construction of SexualAssault 100 (1989)). This quote embodies the hindrance of a preexisting relationship in arape prosecution by relying on the likelihood that post-penetration rape will not be convictedas rape.150. Id. at 876.