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 PM730 Stetson Law Review [Vol. 34Did John rape the girl, or did she engage in consensual sex?In 2003, the California Supreme Court held that John’s actionsconstituted a forcible rape. 2 That holding resolved a jurisdictionalsplit and solidified the legal possibility of post-penetration rape asa convictable offense under California’s rape statute. 3 The holdingproved controversial, and reactions of approval and disapprovalresonated throughout the legal community, media, and generalpublic. 4 Reasons for the controversy varied, but two main issuesarose: whether courts should recognize post-penetration rape asan offense that is convictable under a rape or sexual assault statute,and if so, based on the facts of In re John Z., 5 whether Johnactually committed a rape. 6Post-penetration rape may be defined as a situation in whichboth parties initially consent to sexual intercourse, but, at sometime during the act, one party communicates to the other that heor she is revoking consent and wishes to terminate the inter-2. John Z., 60 P.3d at 188.3. Id. The cases that created the jurisdictional split were People v. Vela, 218 Cal.Rptr. 161 (Cal. App. 3d Dist. 1985), and People v. Roundtree, 91 Cal. Rptr. 2d 921 (Cal.App. 1st Dist. 2000). For a discussion of those cases, consult infra notes 46–60, 87–101,and accompanying text.4. E.g. Family Violence Prevention Fund, California Court Redefines Rape,http://endabuse.org/newsflash/index.php3?Search=Article&NewsFlashID=404 (Feb. 4,2003) (stating that although “some legal scholars and men’s rights activists claim theCourt’s decision is unfair and unconstitutional,” others “say the ruling protects a woman’sright to control what happens to her body at all times”); Robert Greene, Confusion OverConsent: When Did Laura Say No and What Did She Mean?, http://www.laweekly.com/ink/03/53/features-greene.php (Nov. 21–27, 2003) (questioning, in light of John Z., whether“wily women [would] now utter a barely audible ‘no’ in the middle of intercourse to trapmen into becoming rapists” and describing radio talk show commentary that was unsympatheticto the victim); Kathleen Parker, Rape California-Style Is a Woman’s Prerogative,Orlando Sentinel G3 (Jan. 12, 2003) (stating that John waited “a full minute and a half tocease and desist—an act of rare self-control among the primate known as a [seventeen]-year-old male” and concluding that “John Z. wasn’t guilty of rape; he was guilty of beingmale”). The facts of John Z. were so controversial that the case became fodder for a lawschool exam. Harvard Law School, Criminal Law 6: 2002–2003, http://www.law.harvard.edu/academics/registrar/exams_02-03/htmlbagenstos.html (Jan. 10, 2003).5. 60 P.3d 183.6. Id., see Greene, supra n. 4 (stating that the one dissenting justice in John Z. “saidthere was no rape here, or at least not enough evidence of one for a criminal conviction”).The controversy over whether John actually committed a rape is significant because itraises issues that will be relevant in future post-penetration rape cases. For a discussion ofsome of these issues, consult infra Part III. The controversy surrounding John Z. is notunexpected—prosecuted forcible sex cases “often provoke heated public controversy aboutwho should be believed and who should be blamed.” Samuel H. Pillsbury, Crimes againstthe Heart: Recognizing the Wrongs of Forced Sex, 35 Loy. L.A. L. Rev. 845, 855 (2002).
File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM2005] Post-penetration Rape 731course. 7 After the revocation of consent, the other party forces therevoking party to continue the intercourse against his or her will. 8Post-penetration rape is not a convictable offense in everystate. 9 The first post-penetration rape case in a United Statescourt occurred almost three decades ago, and, since that time,post-penetration rape cases have increasingly appeared in differentjurisdictions and have been subjects of varying analyses. 10Some courts disallowed the possibility of post-penetration rape,entirely based on a reading of the state’s rape or sexual assaultstatute or based on persuasive cases from other jurisdictions. 11Others found that a broad reading of the state’s rape or sexualassault statute would allow a post-penetration rape conviction. 12Finally, some courts found that, in addition to following precedentor the language of a statute, common sense or compassion shouldprompt a court to allow a post-penetration rape claim to passmuster. 13The conflicting precedent from different jurisdictions continuesto grow as post-penetration rape cases continue to appear inthe Nation’s courts. This will result in confusion within courtsaddressing future post-penetration rape cases, and it furthers thedebate over the validity of post-penetration rape convictions. For7. Amy McLellan, Student Author, Post-penetration Rape—Increasing the Penalty, 31Santa Clara L. Rev. 779, 780 (1991). McLellan coined the term “post-penetration rape” inher law review article, and the term has been recognized by the general public and legalcommunity. E.g. John Z., 60 P.3d at 186 (noting that Post-penetration Rape—Increasingthe Penalty advocated statutory change to punish post-penetration rape as rape and not asa lesser offense); Greene, supra n. 4 (stating that there can be “in the legal terminology,‘post-penetration rape’’’); but see Harvard Law School, supra n. 4 (describing the revokedconsentscenario as “what is sometimes infelicitously referred to as a ‘post[-]penetrationrape’”).8. McLellan, supra n. 7, at 780. The Author recognizes that men may be rape victims,and this Comment attempts to remain as gender-neutral as possible. However, due to theprevalence of women as rape victims, the Comment unavoidably discusses certain aspectsof post-penetration rape law as unique to the female victim.9. Many states have not had the opportunity for their courts to address the revokedconsentscenario. For a discussion of case law from varying jurisdictions, consult infraParts II.A.–B.10. Infra pt. II.A.–B. (discussing post-penetration rape case law).11. Infra pt. II.A. (discussing cases that disallowed rape convictions for postpenetrationrape).12. Infra pt. II.B. (discussing cases that allowed rape convictions for post-penetrationrape).13. Infra pt. II.B. (discussing cases that allowed rape convictions for post-penetrationrape).
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