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 PM2005] Post-penetration Rape 755consent during the act of sexual intercourse, his or her actionsshould be unequivocal, by words, actions, or both. Physical resistanceshould not be a requisite for unequivocal revocation of consent.The resistance requirement—that the victim must attemptto physically resist the unwanted sexual intercourse—was criticizedby rape law reformers and has been abolished or minimizedby many courts and legislatures. 185 Resistance is often not a requirementof lack of consent in ordinary rape cases. 186 Whetherthe victim physically resisted is relevant in a post-penetrationrape case as evidence of both the victim’s revocation of consentand the defendant’s forcible act, 187 but it is not necessary to proverape, so long as the victim revoked consent orally in a clear andobvious manner. 188 A firm “no” or “I want to stop having sex now”should suffice to evidence the victim’s lack of consent. 189 Theanalysis of the victim’s expression of revocation of consent should599, 602 (1991) (suggesting changing the definition of consent to mean affirmative wordsor conduct “indicating a freely given agreement to have sexual contact”). Current rape lawhas a presumption of consent that may be rebutted by proof of the victim’s lack of consent.See John Z., 60 P.3d at 185 (presuming that the initial intercourse was consensual becausethe parties engaged in the intercourse without speaking). The flaw in arguing that partnersmust gain affirmative consent for each stage of sexual intimacy is that the argumentdisregards the fact that intercourse is often “entered into without negotiation, expressarticulation of desire, or even deliberate decision making.” Pillsbury, supra n. 6, at 954(noting this fact, but suggesting an affirmative consent standard). Proof of lack of consentis a preferable approach over proof of lacking affirmative consent. The argument for a rapeconviction is stronger in a case in which the victim was raped after screaming “no” andstruggling to get away than if she simply did not say “yes.”185. E.g. Barnes, 721 P.2d at 121 (determining that the California legislature’samendment of Cal. Penal Code Ann. § 263 eliminated the resistance requirement for rapeconvictions); State v. Kulmac, 644 A.2d 887, 903–904 (Conn. 1994) (determining that arape victim in need not resist her attacker if she is afraid or overwhelmed). One of themain reasons for the abolishment of the resistance requirement was that each victim reactsdifferently to the crime of rape. Dressler, supra n. 83, at 580–581. Some freeze out offear while others are physically incapable of resisting. Id.186. Allison & Wrightsman, supra n. 20, at 213. Rape law reform narrowed the amountof resistance, if any, required. Id.; see also Dressler, supra n. 83, at 580–581 (discussingthe elimination of the resistance requirement).187. Id. at 581 (noting that “proof of resistance may be helpful—or even critical—to thefactfinder’s determination that a rape has occurred”).188. See Berliner, supra n. 15, at 2696 (stating that, “in the absence of a resistancerequirement, courts have looked to objective manifestations of subjective states or applieda reasonable person standard to subjective feelings”).189. Courts have held that verbal resistance is sufficient to prove lack of consent. E.g.Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996) (upholding rape conviction even thoughjuvenile victim only verbally resisted by telling her attacker to stop). See also Remick,supra n. 124, at 1113 (identifying the trend toward eliminating the physical resistancerequirement and arguing for a verbal consent standard).