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 PM762 Stetson Law Review [Vol. 34other jurisdictions and decided to allow post-penetration rape asan offense because the Kansas statutes do not say that intercourseends with penetration. 222 Therefore, continued nonconsensualintercourse, coupled with the other elements of rape, met theelements of the rape statute. 223 Bunyard expanded the limitedprecedent of what constitutes a reasonable time for one partner todiscontinue intercourse after the other revokes consent by findingthat it was not reasonable for the defendant to take five to tenminutes to stop the intercourse. 224When the California Supreme Court decided In re John Z.,the impact of the holding on the nation was impossible to predict.225 An important breakthrough occurred in July 2003. In responseto John Z., the Illinois Legislature passed a revokedconsentstatute. 226 The statute provides, “A person who initially222. 75 P.3d at 755–756 (relying on the holdings in John Z., Robinson, and Siering, andrejecting the logic of Vela).223. Id. at 756.224. Id.225. E.g. Armond D. Budish, When a Woman Says No, the Man Had Better Stop, TheColumbus Dispatch 02F (Apr. 18, 2003) (noting that Ohio courts have not declared a positionon post-penetration rape, “[b]ut if men want to stay on the right side of the law, theywould be wise to listen up and put on the brakes—immediately—when a partner makes itclear she wants to stop”); Family Violence Prevention Fund, supra n. 4 (stating “[i]t isunclear what impact, if any, the California Supreme Court’s ruling will have on cases inother states”).226. 720 Ill. Comp. Stat. Ann. 5/12-17 (West 2004). The Illinois statute’s opponentsargue that is unnecessary because it allows women to claim rape when they actually engagedin consensual intercourse, it counteracts rape law reforms, and it confuses themeaning of consent. See Bean, supra n. 180 (stating that one “should [not] have to codifybasic principles of human rights, which is what rape laws are all about”). However, byreviewing the case law of post-penetration rape, it becomes clear that statutory changesare necessary to provide guidance to courts that are addressing the post-penetration rapescenario. Because of the initial consent, it is more burdensome to prove a revoked-consentrape case. Id. (noting that in a state without a revoked-consent statute, it is “difficult toconvict if the initial penetration is consensual”). A codification of the elements required toprove a post-penetration rape case will ease the burden on prosecutors and ensure thatdefendants who committed a deviant act will be punished. NBC News: Saturday Today,“Kobe Bryant Sexual Assault Charge” (NBC Aug. 2, 2003) (TV broadcast, transcr. availableat http://www.royblack.com/tv/transcripts/nbcnews_ aug2_03.html (accessed Sept. 29,2004)) [hereinafter NBC News] (stating that the Illinois statute will overcome that burdenbecause it is “going to be an additional tool for prosecutors to use in their closing argument”and for judges to use when instructing the jury as to “what constitutes consent,[and] therefore, what constitutes rape”). Concerns that a revoked-consent statute willcreate a slew of fraudulent or frivolous cases in which a woman will “utter a barely audibleno” during intercourse and then claim rape are irrational. Greene, supra n. 4; see also NBCNews (stating that the Illinois revoked-consent statute “is going to encourage the falsereporting of rape, not real instances of rape”). False reports of rape are no more prevalent
File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM2005] Post-penetration Rape 763consents to sexual penetration or sexual conduct is not deemed tohave consented to any sexual penetration or sexual conduct thatoccurs after he or she withdraws consent during the course of thatsexual penetration or sexual conduct.” 227 It is the first revokedconsentlaw in the United States and was passed for several reasons.First, the Illinois Legislature wanted to avoid a lengthycourt battle like that of John Z. if a post-penetration rape casewas prosecuted in Illinois courts. 228 Second, the law was intendedto redefine consent by codifying the idea that a person may haltsexual activity at any time. 229than false reports of other serious crimes. Burt, supra n. 154, at 28. The same concernswere articulated by those “opposed to abolishing the marital rape exemption”—that vindictivewives would bring false lawsuits. Allison & Wrightsman, supra n. 20, at 91. Eliminatingthe marital rape exemption did not create a flood of matrimonial rape claims. Id. Similarto the increasing acceptability of acquaintance-rape claims, a revoked-consent statutewill empower the post-penetration rape victim to come forward with greater confidencethat the law protects the victims of crimes as well as the defendants who perpetratecrimes. Because so many acquaintance rapes go unreported, a codification of the principlethat a person may revoke consent may empower some victims to go forward with a rapeclaim. One study found that only five percent of acquaintance-rape victims reported theassault. Id. at 61.A revoked-consent law does not counteract rape law reforms. Although rape reformresulted in courts taking the focus off of the victim’s conduct to a heavier examination ofthe defendant’s conduct, the victim’s actions are a necessary inquiry in a post-penetrationrape case. A victim’s-rights advocate stated that the Illinois law thwarts rape law reformbecause it should never be codified that a woman can change her mind. Bean, supra n.180. However, other areas of law codify a person’s right to change his or her mind regardingconsent. Trespass law is illustrative of why a revoked-consent statute can apply in thearena of rape law. If you invite a person to come to your home and he or she gets rowdyand unpleasant, you have the right to revoke your consent to have that person in yourhome. If the offending person remains, the person may commit a trespass. Similarly, if oneconsents to sexual intercourse, and then revokes consent, the offending person may stillcommit a rape.Finally, the Illinois statute does not confuse what constitutes consent. Rather, thestatute clarifies the meaning of consent by providing that if a person initially consents tosexual activity, consent may not be presumed for any subsequent activity after withdrawalof consent. 720 Ill. Comp. Stat. Ann. 5/12-17 (West 2004). In effect, the statute negates thewaiver approach to consent and protects the right of sexual autonomy. Further, the statuteprevents confusion in the courtroom that has occurred in past post-penetration rape cases.Because the statute clearly allows people to withdraw consent, the likelihood of jury questionsis significantly decreased.227. 720 Ill. Comp. Stat. Ann. 5/12-17 (West 2004).228. See NBC News, supra n. 226 (describing Illinois’s reaction to John Z as “a clarificationto what constitutes consent”).229. See NBC News, supra n. 226 (emphasizing the fact that, under Illinois law, “consentis a freely-given agreement to the act of sexual penetration or sexual contact in question”and describing the law under the new statute as providing that “any time during thatsexual activity the person withdraws consent and the other person continues, then that’sforce and that’s a crime in the [S]tate of Illinois”). This codification negates the waiver
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