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

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File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM756 Stetson Law Review [Vol. 34be based on an objective, rather than a subjective, standard. Contraryto Vela’s logic, how the victim felt when he or she revokedconsent is not as essential to the prosecution’s attempt to proverape as how the victim stated his or her revocation. 190Second, the court should determine whether the defendantunderstood the victim’s conduct because there is a possibility thatthe defendant will not understand the victim’s actions or words tobe a revocation of consent. 191 The defendant’s reaction to the victim’sconduct is one reason why John Z. was so controversial. 192The victim said “no”; but was it, “No, I don’t want to have sexanymore,” or, “No, hurry up?” 193 Although the admissibility of apost-penetration rape claim empowers prosecutors, victims, andcourts to punish those who commit a rape, the burden likely willbe high to prove the defendant’s mens rea. 194 If a misunderstandingoccurs, the court must ask whether the defendant had theadequate mens rea to commit a rape even though wrongful intentis an element in rape cases that is often set aside. 195Third, the court must examine whether, once the defendantunderstood that the victim revoked consent, the defendant compelledcontinued intercourse. The amount of force required to190. See Pillsbury, supra n. 6, at 934–935 (stating that “in forced-sex cases, communicativebreakdowns go beyond language problems,” as the forced-sex perpetrator “remainsoblivious to his partner’s nonconsent, not because of a failure to use the rights words orgestures . . . but because the perpetrator is not interested in her message and . . . findsways to ignore or reinterpret her expressions to give him permission to continue”). Thevictim should communicate to the best of his or her ability an unwillingness to continueintercourse.191. E.g. John Z., 60 P.3d at 190 (Brown, J., dissenting) (stating that the victim’s testimonyindicated that the defendant did not understand her revocation).192. Supra n. 4 and accompanying text.193. John Z., 60 P.3d at 190 (Brown, J., dissenting); see also CNN, Becker: Bryant CaseTurns on Consent, Evidence, http://www.cnn.com/2003/LAW/07/19/cnna.becker/index.html(July 19, 2003) (stating that “it doesn't matter what was in the privacy of this woman'smind. What matters is what she said and did and whether someone in Kobe's positionwould have understood that there was consent or not.”).194. See CourtTV, New Rape Law Says People Can Change Mind during Sex,http://www.courttv.com/news/2003/0730/rapelaw_ap.html (updated July 30, 2003) (statingthat the Illinois law that allows post-penetration rape claims is “important to make it clearto victims, offenders, prosecutors and juries that people have the right to halt sexual activityat any time”).195. This is because “the law on the mens rea for rape is muddled,” David P. Bryden,Redefining Rape, 3 Buff. Crim. L. Rev. 317, 325 (2000), and “[m]ost state simply fail todiscuss levels of intent in rape cases.” Robin Charlow, Bad Acts in Search of Mens Rea:Anatomy of a Rape, 71 Fordham L. Rev. 263, 272 n. 40 (2002) (quoting Berliner, supra n.15, at 2691).
File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM2005] Post-penetration Rape 757prove the actus reus in a forcible rape case traditionally has beena sexual act “by force or against [the victim’s] will.” 196 The defendant’suse of force or threat to use force likely to cause bodilyharm to the victim or another person will satisfy the act requirement,197 but, in an acquaintance rape, it is rare for the defendantto use extreme force that causes injury to the victim. 198 Generally,there is some voluntary interaction in a nonstranger rape. 199 Forthat reason, the force required to complete penetration withoutthe victim’s consent has been held sufficient to complete theact. 200 Because penetration has already occurred in the revokedconsentscenario, it creates an issue of what the required amountof force used by the defendant must be to complete a rape. 201Courts have found and should continue to find that, once the victimunequivocally revokes consent, the force required to accomplishcontinued penetration is sufficient to complete the crime. 202If the defendant compelled intercourse in spite of the victim’s objectionsto stop, he has acted in a manner that constitutes rape.From that continued penetration spawns another issue: howlong must the continued penetration be to turn the consensualintercourse into a rape? There is no magic number of seconds orminutes that makes the defendant’s continued penetration toolong. The standard must be that of a reasonable time—whetherthe defendant had a fair opportunity to understand the victim’srevocation and to avoid the mistake of continuing intercourse. 203196. Dressler, supra n. 83, at 577.197. Id. (citing Model Penal Code Commentaries § 2.13.1 at 308 (ALI 1980)).198. Burt, supra n. 154, at 27.199. Id.200. Dressler, supra n. 83, at 583; see In re M.T.S., 609 A.2d 1266, 1277 (N.J. 1992)(holding that a defendant may be found guilty of forcible sexual assault if he commitssexual penetration of another in the absence of “affirmative and freely given permission. . . to the specific act of penetration. . . .”).201. Robinson, 496 A.2d at 1069–1070 (discussing the “critical element” of “continuationunder compulsion”).202. Robinson held that the critical element of post-penetration rape is “continuationunder compulsion,” and this is a proper standard. Id. Continued penetration should not beconstrued as harmless persistence. See John Z., 60 P.3d at 190 (Brown, J., dissenting)(questioning whether a defendant’s persistence should be viewed as force or compulsion,and if persistence should be punished as forcible rape). If the female revokes consent verbally,she might be scared to physically resist, and she should not have to. Verbal revocationis sufficient for the defendant to understand that the sex is no longer consensual, andit transfers the duty to the defendant to cease intercourse.203. This is gleaned from George Fletcher’s test for assessing culpability. Remick, supra
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