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 PM736 Stetson Law Review [Vol. 34without interruption of penetration. 48 The jury asked the trialcourt judge whether a rape occurs when a female is forced to continueintercourse after revoking willingly given consent. 49 Thetrial court first answered in the affirmative and then amended itsanswer to state, “[W]e do not have a definitive answer to thatquestion.” 50 The jury returned a guilty verdict. 51 On appeal, theVela court held that it was not rape when the defendant forciblycompelled the victim to continue initially consensual intercourseagainst her will. 52 The court provided several reasons for its holding.First, the court referred to the California Penal Code, whichdefines rape as nonconsensual sexual intercourse in which “[a]nypenetration, however slight, is sufficient to complete the crime.” 53Relying on that statutory definition and the Way and Battle holdings,the court found that initial penetration is “the crucial point”at which the crime of rape is completed. 54 Therefore, a rape didnot occur if the victim revoked consent following penetration, buteach subsequent act of penetration, accompanied by the otherelements of rape, could complete the crime. 55 Second, the courtmade reference to the following language in the Penal Code: “[t]heessential guilt of rape consists in the outrage to the person andfeelings of the female.” 56 That language prompted the court topromulgate the theory that the essential guilt of rape—causingthe female outrage—is lacking in a revoked-consent case. 57 Thecourt set forth its theory with the following language:When a female willingly consents to an act of sexual intercourse,the penetration by the male cannot constitute a violationof her womanhood nor cause outrage to her personand feelings. If she withdraws consent during the act of sexualintercourse and the male forcibly continues the act withoutinterruption, the female may certainly feel outrage be-48. Id. The court did not specify how the victim communicated her revocation of consentor in what manner the defendant compelled her to continue intercourse.49. Id. at 162–163.50. Id. at 163.51. Id.52. Id. at 165.53. Id. at 164 (citing Cal. Penal Code Ann. § 263 (West 1984)).54. Id. at 163–164 (relying on Battle, 414 A.2d at 1270; Way, 254 S.E.2d at 762).55. Id. at 165.56. Id. at 164–165 (citing Cal. Penal Code Ann. § 263 (West 1970)).57. Id. at 165.
File: Davis.343.GALLEY(7) Created on: 6/2/2005 9:33 AM Last Printed: 7/7/2005 2:54 PM2005] Post-penetration Rape 737cause of the force applied or because the male ignores herwishes, but the sense of outrage to her person and feelingscould hardly be of the same magnitude as that resultingfrom an initial nonconsensual violation of her womanhood. 58For those reasons, the court reversed the defendant’s rapeconviction. 59 Although the court found that post-penetration rapewas a legal impossibility, it stated that defendants in revokedconsentcases may be found guilty of a lesser crime, such as assaultor battery. 60Subsequent cases departed from the view that postpenetrationrape may not be convicted as rape, generally by findingthis trio of cases unpersuasive. 61 Regardless, Way and Battleremain binding within their jurisdictions, and Vela remainedbinding until 2003. 62B. Cases Allowing Post-penetration Rape ConvictionsAlthough the number of cases in which a court is willing toconvict a defendant for post-penetration rape as rape is increasing,63 some courts are still hesitant to address the revokedconsentscenario. 64 This section describes the varying ways courtshave reached the conclusion that a person initially may consent tosex and still be raped. These conflicting analyses will create problemsfor a court looking to outside authority when addressing the58. Id.59. Id.60. Id.61. Consult infra Part II.B. for cases that allow post-penetration rape convictions.62. John Z., 60 P.3d at 186, 188 (disapproving of the "unsound" reasoning in Vela).63. The first court to address the issue of post-penetration rape refused to allow apost-penetration rape conviction. Way, 254 S.E.2d at 762. Since that decision, the cleartrend in the law has been toward allowing post-penetration rape convictions. See infra n.125 (listing state courts that have addressed the issue of post-penetration rape, the majorityof which have allowed convictions for post-penetration rape).64. E.g. State v. Crain, 946 P.2d 1095, 1102 (N.M. App. 1997) (stating that, eventhough “we do not rule on the merits of the issue of withdrawal of consent under NewMexico law, we note that other jurisdictions have questioned the legal validity of theproposition that there can be no rape . . . if the victim’s consent is withdrawn after penetrationhas begun”) (citing State v. Siering, 644 A.2d 958, 961–963 (Conn. App. 1994); Statev. Robinson, 496 A.2d 1067, 1069–1071 (Me. 1985); State v. Crims, 540 N.W.2d 860, 865(Minn. App. 1995)). However, the Crain court continued to state that the concept of “withdrawal-of-consent”(post-penetration rape) has questionable legal validity and is a “noveltheory.” Id.
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