Copyright (c) 2004 The Harvard Law Review Association
Harvard Law Review
May, 2004
117 Harv. L. Rev. 2341
ACQUAINTANCE RAPE n1 AND DEGREES OF CONSENT: "NO" MEANS "NO," BUT WHAT DOES
"YES" MEAN?
No longer is the defendant who argues that "no" means "yes" taken seriously. n2 However,
rape law still grapples with a woman's "yes" - what it means and how it should be defined. n3
Never is the murky nature of consent more evident than when a woman indicates that she
agreed to some sexual activity on the occasion of an alleged rape. How does "yes" on such
occasions - to foreplay, to oral sex, or even initially to sexual intercourse - affect an objective
determination of consent to an alleged act of rape? How does this "yes" affect the objective
reasonableness of a man's belief in consent to an alleged act of rape - the crux of the mistakeof-fact defense? n4
This Note identifies instances in which "yes" to some degree of sexual contact occurs, and
highlights the tension created within the law of rape by the recognition of a limited notion of
consent. Part I discusses the development of a generalized-consent jurisprudence in rape law,
and Part II describes how this notion of generalized consent may be applied to sexual
encounters during which consent to some sexual contact has been granted on the occasion of
a rape. Part III explores how rape law can and does recognize limited consent to sexual
intimacy on the occasion of a rape. Part IV discusses how rape law acknowledges limitations
on consent to sexual intercourse.
I. Generalized Consent - Relationships
The notion of generalized consent exists in rape law to the extent that consent to prior sexual
intercourse either indicates consent to subsequent intercourse or suggests a greater likelihood
that the defendant reasonably believed the victim consented to the later encounter. n5 This
notion effectively creates a presumption of consent to sexual intercourse on any specific
occasion that the victim must somehow negate.
This idea is most pervasive in cases of marital rape. Although the law of spousal rape has
evolved from the time when "I do" translated into a blanket, irrevocable consent, n6 there
remains the idea that marriage signals generalized consent to sexual intercourse with one's
spouse. Twenty-six states have some form of marital immunity prescribed by statute, either
precluding or limiting spousal liability for certain sex offenses. n7 Notably, twenty of those
states either implicitly or explicitly exempt spouses from prosecution for sex offense charges if
the complainant spouse was mentally incapacitated or physically helpless at the time of the
assault. n8 In other words, a "yes" is assumed in cases in which the norm is that no effective
consent can be given. [*2343] Such generalized consent may mean that a showing of
marital rape requires force or resistance beyond that which is typically sufficient to negate the
presumption of consent. Typical marital rape cases do not involve a simple revocation of
consent. Instead, they implicate a history of domestic violence clearly indicating that there
was no consent. n9 In this context, it remains unclear whether a spouse realistically has the
ability simply to withdraw the generalized consent perceived to be granted by marriage.
The idea of generalized consent also exists with respect to nonmarital sexual relationships.
n10 Most states provide a rape shield exception that allows for the admission of evidence of
prior sexual conduct between the defendant and the victim, thereby making previous consent
presumptively relevant to the determination of present consent or of reasonable belief in
consent. n11 The more sexual history between two parties, the more evidence admitted under
the rape shield exception, thereby increasing the likelihood that an inference of consent will be
made. n12 State v. Alston, n13 a North Carolina Supreme Court decision, illustrates how this
presumption operates in cases involving a prior relationship between the defendant and the
victim:
The State ordinarily will be able to show the victim's lack of consent to the specific act charged
only by evidence of statements or actions by the victim which were clearly communicated to
the defendant and which expressly and unequivocally indicated the victim's withdrawal of any
prior consent and lack of consent to the particular act of intercourse. n14
[*2344]
II. Generalized Consent - the Occasion of a Rape
Rape law, both formally and informally, also recognizes generalized consent to sexual
intercourse when the victim expresses some degree of consent during the occasion of the rape
itself.
A. Voluntary Social Companions
At least four states - Delaware, Hawaii, Maine, and West Virginia - adopted and later repealed
a statutory provision prescribing a reduced degree of felony for a rape charge if the victim was
a voluntary social companion of the defendant on the occasion of the rape. n15 The Delaware
and Hawaii rape statutes allowed this reduction only when the voluntary social companion had
previously engaged in some consensual sexual activity with the defendant. n16 In contrast,
the Maine and West Virginia rape statutes focused solely on the present encounter between
the victim and the defendant, making no reference to prior sexual interactions. n17 The latter
provisions, therefore, more purely reflected the notion of generalized consent as applicable to
a particular encounter irrespective of a prior relationship. In West Virginia, the reduction in
degree required only that the victim was a "voluntary social companion of the actor on the
occasion of the crime"; n18 it did not require consensual sexual contact between the victim
and the defendant. Maine, however, required that consensual sexual contact occur on the
occasion of the rape. n19
At least one Delaware court expressed the skepticism that existed, and that still exists, toward
complainants who socialized with their rapists; the court stated that "being a voluntary social
companion "reduces confidence in the conclusion of aggression and non-consent, and seems
relevant as well to the degree of injury inflicted and the general dangerousness of the actor.'"
n20 As a result of this skepticism, voluntary [*2345] social companion provisions typically
required an aggravating factor - such as injury or use of a weapon - to overcome the
presumption that consent was in fact granted. n21
Maine's voluntary social companion provision was distinct in that it adopted a notion of
generalized consent based on sexual contact occurring on the occasion of a rape. As a defense
to "class A" rape, the statute allowed the defendant to argue that the victim was his voluntary
social companion at the time of the offense and had, "on that occasion, permitted [him] sexual
contact." n22 This provision prescribed a reduction to second-degree rape without exception that is, even if serious injury resulted or a weapon was used. By treating consent to sexual
contact as a mitigating factor against the severity of the rape charge, this provision essentially
formalized the implicit understanding that someone who consents to some sexual activity
assumes the risk of injury or violence resulting from a rape. n23 The reasoning behind such a
policy was expressed in State v. Reed, n24 in which the Supreme Judicial Court of Maine
vacated and remanded a defendant's class A rape conviction for failure to give a jury
instruction on the voluntary social companion provision. n25 The court stated:
The essence of the voluntary social companion defense is that the victim voluntarily induced
the performance of the ultimate sexual act by (1) being voluntarily present as a social
companion, and (2) permitting sexual contact, short of the sexual act, itself, to occur. The
theory of the defense is that by permitting any sexual contact to occur in the context of a
present voluntary social relationship, the victim has led the defendant to believe there is
willing consent to the performance of the ultimate sexual act [*2346] or has so aroused the
defendant that the performance of the sexual act is a reasonably expectable consequence of
the victim's conduct.
It is the indication of willingness to submit to, or the arousal of need for, sexual gratification
by the conduct of the victim that is prescribed by the Legislature to be of sufficient mitigating
significance to justify a jury's reduction of the seriousness of the offense. n26
B. Consent to Sexual Intimacy
Columnist Ann Landers once wrote that "the female who agrees to hours of petting but does
not want to complete the sex act is asking for trouble and she will probably get it." n27
Typically, the idea that consent to some sexual contact creates a presumption of generalized
consent to all sexual activity is not stated so explicitly. However, this idea tends to manifest
itself in the sensibilities of judges, juries, and prosecutors, as well as in the background rules
of resistance that still operate in rape law.
This view may reflect a widespread and longstanding sentiment among the general public and
hence among the potential jury pool in rape cases. In 1983, a study conducted at
Pennsylvania State University found that the point on a date at which a woman began
protesting sexual intercourse - early (after a "French kiss"), middle (after the man begins
caressing the woman's breast and thighs), or late (after both are undressed) - affected the
way in which subjects perceived her desire for the nonconsensual sex that followed. n28 This
study further revealed that in the late-protest scenario, the use of force by the man - from low
to moderate - had no impact on the woman's perceived desire for sexual intercourse. n29
Finally, in the low-force, late-protest condition, while two-thirds of the participants felt that the
man's conduct was wrong and seven-eighths of the participants felt that the [*2347] woman
had a right to stop intercourse from taking place, only one-third of the participants labeled the
scenario as rape. n30
1. Background Rules. - In 1960, Menachem Amir's study of police response to rape complaints
revealed a systemic presumption of consent to sexual intercourse based on the behavior of the
victim prior to the rape. The study described these encounters as "victim-precipitated rape":
situations in which the woman actually or apparently agreed to intercourse "but retracted
before the actual act or did not react strongly enough when the suggestion was made by the
offender(s)," and "risky situations marred with sexuality," such as when the woman uses
indecent language and makes gestures that the man can interpret as an invitation to sexual
relations. n31
Although the law does not recognize precipitation or provocation as a defense to rape, the
perception of these factors influences arrest and charging decisions of police and prosecutors,
jury verdicts, and sentencing decisions. n32 More importantly, Amir's study explicitly details a
mindset that rape law still implicitly supports: that a woman's consent to a limited form of
sexual contact should be considered an invitation to sexual intercourse.
The legal rule of resistance in rape law, formally abolished but functionally operational, also
supports the notion of generalized consent on the occasion of a rape. Traditionally, rape law
required "resistance" or "resistance to the utmost." n33 This concept signaled to juries,
judges, and prosecutors that any indication of consent - even consent [*2348] to casual
companionship - would preclude the required level of resistance from being met. Although
most states have now eliminated this requirement, n34 resistance is still relevant to a finding
of lack of consent and use of force. n35 Generally, rape law requires affirmative dissent hence resistance - in situations in which some consensual contact has taken place. n36 Aya
Gruber notes that courts incorporate tort-like principles into rape cases by finding that the
victim assumed the risk or was contributorially negligent based on her actions during the
sexual encounter. n37 Gruber argues that the formal resistance requirement operated as an
obvious assumption-of-risk standard - resist or risk being raped. n38 These tort-like principles
have now been incorporated into rape law informally as a basis for assessing the credibility of
the victim and the culpability of the defendant. n39 These principles suggest that any sexual
intimacy on the occasion of a rape could be viewed as the victim's assumption of the risk that
her limited consent will be misinterpreted as full consent. A woman seeking only limited sexual
gratification assumes the risk of getting more than she bargained for.
2. Revocation of Consent. - The traditional view of rape is that the act of penetration
completes the offense; therefore, the elements establishing an act of sexual intercourse as
rape - lack of consent and use of force - must occur before the act of penetration. n40 A
number [*2349] of current statutory definitions of "sexual intercourse" support this idea. n41
Under these statutes, penetration becomes the critical moment - the defining moment - of
rape, thereby bifurcating rape into acts that occur prior to penetration and acts that occur
after penetration. This means that for sexual intercourse to be considered consensual, consent
must precede penetration. n42 Conversely, consent that has been granted must be withdrawn
prior to penetration. n43 This seemingly straightforward position is complicated by the fact
that courts regard verbal statements and nonverbal behavior - specifically, acts of intimacy as expressions of consent. Clearly, the statement "let's have sex" or "I want to have sex with
you" indicates consent to intercourse. And this consent can be withdrawn - according to the
traditional view - at any time prior to penetration. However, to the extent that the case law
also infers consent to intercourse from a person's willingness to engage in sexually intimate
acts prior to intercourse, the law effectively [*2350] requires a revocation of consent to
intercourse in situations in which consent may not have been granted.
III. Recognition of Limited Consent to Sexual Contact
A. State Statutes - Progressive Notions of Consent
A limited notion of consent already governs the rape law of some states. Colorado law defines
consent as "cooperation in act or attitude pursuant to an exercise of free will and with
knowledge of the nature of the act." n44 California has a definition of consent similar to
Colorado's. The California statute requires "positive cooperation." n45 In defining consent as
"cooperation," these statutes not only seem to eliminate the idea that acquiescence equals
consent, but they also describe consent as a continual agreement throughout the sexual
encounter. Consent is an affirmative decision to engage in a sexual encounter, and both
participants must be responsive and involved if either's actions or words are to be considered
as consent. Interestingly, Colorado's definition of consent has been interpreted as allowing for
the revocation of consent during a sexual encounter - as though revocation would be
unavailable otherwise. n46 Yet this understanding of consent seems to negate the idea that a
revocation of consent is even required. The idea of consent as ongoing cooperation suggests
that lack of consent is the absence of that cooperation (passivity, acquiescence) rather than
an affirmative revocation of consent. This suggestion indicates that revocation of consent is
not required. Athough practically, some expression of nonconsent would be necessary to
indicate lack of interest in further sexual intimacy on a particular occasion, at the very least,
"consent as cooperation" rejects the idea that this expression of nonconsent is the revocation
of previously granted consent to intercourse. In conceiving of consent as "cooperation," the
California and Colorado statutes acknowledge [*2351] that consent to certain sexual acts in
the course of an encounter is not equivalent to consent to sex. n47
A less explicit recognition of limited consent can be found in the definitions of consent adopted
by five more states and the District of Columbia. Wisconsin defines consent as "words or overt
actions by a person who is competent to give informed consent indicating a freely given
agreement to have sexual intercourse or sexual contact." n48 The District of Columbia, Illinois,
Minnesota, and Washington use similar language. n49 In addition, the New Jersey Supreme
Court has held that consent is defined as affirmative and freely given permission. n50 These
states, by requiring an affirmative act to express consent, exclude acquiescence from the
definition of consent and thereby eliminate the idea that resistance is necessary to negate the
initial consent granted by the victim. This understanding leaves open the possibility of
recognizing a limited consent to intimacies short of intercourse.
B. Beyond Statutory Definitions
In addition to laying the foundation for a reconstruction of the definition of consent, the notion
of specific or limited consent could inform jury instructions that bear upon the treatment of
evidence regarding whether the complainant objectively consented or whether the defendant
had a reasonable belief as to the complainant's consent.
1. Relevancy Limitations: Mistake of Fact. - Limited consent during a sexual encounter can be
recognized by articulating a distinction between evidence that is relevant to a determination of
objective consent and evidence that is relevant to a determination of reasonable belief in
consent. Under this distinction, not all of the sexual intimacy that occurs during an encounter
would be relevant to a determination whether there was a reasonable belief in consent,
although all of this evidence would be relevant to the determination of objective consent.
There is some precedent for this distinction in a few state court decisions that treat prior or
current sexual contact as relevant only to objective-consent determinations.
California's mistake-of-fact doctrine articulates this distinction. In People v. Williams, n51 the
California Supreme Court stated that the [*2352] relevant inquiry under People v. Mayberry,
n52 the case establishing the availability of the mistake-of-fact defense in California, is
whether the defendant believed that the victim consented to have intercourse, not whether
she consented to spend time with him. n53 In Williams, the victim, a homeless woman,
accompanied the defendant to a hotel room and was subsequently raped. n54 The court noted
that before going to the hotel room, Williams mentioned nothing about sex and that Williams
himself testified that "prior to entering the hotel room he neither wanted nor expected sex."
n55
The Williams court's reasoning suggests that with regard to the reasonable-belief defense,
there should be a bifurcation of a sexual encounter based on when the intent to have sexual
intercourse - expressed by either party - first manifested itself. Objective consent is
determined based on the credibility of the witnesses and the believability of their stories,
whereas mistake of fact is, or should be, determined based on the defendant's reasonable
belief at the time that the victim consented to sexual intercourse. n56 Actions on the part of
the victim prior to the manifestation of intent to have intercourse should not be considered in
making a determination of reasonable belief in consent, since there is no indication of what
the victim was consenting to. Thus, a two-prong analysis is necessary: at what point in the
encounter did either actor indicate an intent to have intercourse, and what conduct on the part
of the victim - after the intent manifested - supported the defendant's reasonable belief in
consent? The validity of this approach is bolstered by Tyson v. State, n57 in which the Indiana
Court of Appeals upheld boxer Mike Tyson's rape conviction and found that "an honest and
reasonable belief that a member of the opposite sex will consent to sexual conduct at some
point in the future is [*2353] not a defense to rape." n58 In Tyson, the defendant was
prevented, because of procedural requirements, from introducing testimony from witnesses
who saw him and the victim hugging and kissing in a limousine prior to going into the hotel
where the rape occurred; the appellate court upheld this exclusion. n59 Applying the
bifurcation analysis articulated above, the ruling in Tyson on this particular issue was sound
not because of the time that passed in between the initial sexual contact and the sexual
encounter, but because the intent to have intercourse was not manifest when the intimate
contact in the limousine occurred.
2. Relevancy Limitations: Objective Consent. - Courts might also allow the jury to consider
evidence of sexual contact on the occasion of the alleged rape for the purpose of establishing
credibility, but not to show consent of the victim. The idea that some intimate acts are not
presumptively relevant to consent to sex has some support in the case law. In Commonwealth
v. Fionda, n60 the Appeals Court of Massachusetts found that kissing and risque conversation
between the victim and defendant on a prior occasion were not probative of whether the
victim consented to sexual intercourse on the later occasion. n61 In this particular case, the
defendant claimed that after a night of risque "truth or dare" (which included kissing, petting,
and disrobing) with the victim and two other people, he and the victim had consensual
intercourse. n62 The victim admitted to the intimate contact but stated that she did not even
remember having intercourse with the defendant because she was so drunk. n63 The trial
court instructed that prior sexual intercourse would be considered relevant if determined to be
consensual, but gave no instruction as to other sexual contact. n64 In upholding the
instruction on sexual intercourse alone, the appellate court declined to rule on whether the
prior sexual contact short of intercourse was relevant to the issue of consent, but did find that
while the [*2354] prior intercourse was relevant to later consent to intercourse, the prior
kissing and risque conversation were not. n65
More notably, in the California case People v. Ray, n66 the defendant asserted that he
engaged in consensual oral sex with the victim a few hours before the rape. n67 Though the
defendant's assertion was introduced into evidence, the trial court rejected the defendant's
proposed jury instruction that the jury could consider evidence of this consensual oral sex to
show the victim's consent to the subsequent sexual intercourse. n68 This instruction was
patterned on California Jury Instruction 10.61.1, which allows evidence of prior sexual
intercourse between the two parties to be considered by the jury as tending to show that the
victim consented to subsequent intercourse. n69 The appellate court upheld the trial court's
decision, finding "no indication that the Legislature intended to allow jury instructions
concerning prior sexual behavior between the victim and defendant other than sexual
intercourse." n70 Recognizing that this evidence is admissible under California's rape shield
exception, the court still found that the admissibility of evidence of oral sex did not justify an
instruction concerning the activity. n71 An explanation of the court's decision in Ray cannot
rest solely on the fact that the court considered the oral sex a prior act, as it occurred only
hours before the rape; more likely, the decision stemmed from a combination of the time
elapsed and the fact that the nature of the act was dissimilar from that of an act of
intercourse.
Indeed, both the Ray and Fionda courts, without explicitly saying so, seemed to rely on some
distinction between the nature of intercourse and the nature of other sexual acts. The
acknowledgment of specific, rather than generalized, consent would prompt courts to engage
in a more explicit dialogue attempting to articulate and define such distinctions. For example,
in evaluating petting and oral sex - the conduct at issue in the aforementioned cases questions as to the nature of these acts are central to a determination of relevancy to consent
to intercourse. Presumably, people engage in petting with greater frequency than they engage
in sexual intercourse; therefore, petting alone does not tend to show consent to sex. However,
petting can operate as foreplay to intercourse and in those instances may indicate [*2355]
consent to sex. To distinguish between these two circumstances, the court could require the
jury to consider whether the consensual sexual intimacy of the two parties escalated
consensually from petting to intercourse. An affirmative determination would establish that
consent had been objectively granted. This inquiry focuses the jury on the shift in the victim's
status from voluntary to involuntary participant, emphasizing that the victim's consent to
petting is specific rather than generalized consent and, without more, should not imply
consent to sex. Certain acts subsequent to this consensual activity, such as further disrobing
or the willing move to a more intimate location (beginning in the living room and going to the
bedroom, or beginning in the car and going to a hotel n72), may indicate an escalation of
consent. This is obviously a complex determination, but it focuses the jury on a crucial issue not whether consensual petting or necking occurred, but what it meant.
Most prominently, the nature of oral sex has raised critical questions about its relevancy to the
determination of consent to intercourse. In 1998, President Clinton sparked a national
discussion regarding the nature of oral sex as "sex." n73 Recent studies and reports indicate
that at least some portion of the public - particularly the younger generation - agrees with his
position. n74 If people regard oral sex as distinct from and of a significantly less intimate
nature than intercourse, it is worth asking whether an act of oral sex is evidence of consent to
subsequent sexual intercourse during that same encounter. If sexual mores shift so that oral
sex is no longer viewed as "sex" and consensual oral sex occurs immediately preceding an
alleged rape, does that act of oral sex tend to show consent to subsequent intercourse?
Furthermore, can oral sex demonstrate a reasonable belief of consent to intercourse when it
may not be considered "sex" to one or both participants? These questions highlight the need
for courts to take a more serious and explicit look at the distinctions they have implicitly (and
perhaps unwittingly) drawn.
[*2356]
IV. Recognition of Limited Consent to Sexual Intercourse
Even actual consent to sexual intercourse is not free from some level of ambiguity. Consent to
intercourse, once given, can still be revoked. Limitations on this revocation of consent have
been explored by a minority of state courts in deciding whether to recognize postpenetration
rape - when consent to intercourse has been given and is then revoked after penetration.
Although consent is revocable, does it become irrevocable at some point during a sexual
encounter? Two state courts have argued that rape does not result when withdrawal of
consent occurs after penetration. The seven other state courts that have addressed this issue
recognize postpenetration rape; in doing so, they acknowledge a limited consent to sexual
intercourse that has not yet been recognized in the context of sexual contact preceding
intercourse.
A. Postpenetration Rape
Few state courts have addressed the issue of postpenetration withdrawal of consent. Courts in
three states - Maryland, North Carolina, and California - have explicitly rejected the idea that a
woman can withdraw consent after penetration.
In Battle v. State, n75 the Maryland Court of Appeals addressed this question. The jury in
Battle submitted the following question to the trial judge: "When a possible consensual sexual
relationship becomes non-consensual for some reason, during the course of the action - can
the act then be considered rape?" n76 The trial judge responded that it was "possible for a
situation to start out as consensual and then become a non-consensual one in the course of
the event." n77 The appellate court, in reversing the defendant's conviction based on the
ambiguous instruction, first noted that since consent must precede penetration, consent can
only be withdrawn prior to penetration. n78 The court surmised that if a woman consents prior
to penetration and withdraws the consent after penetration, "there is no rape." n79
[*2357] In State v. Way, n80 the Supreme Court of North Carolina also rejected the
possibility of withdrawal of consent after penetration. n81 In Way, the trial judge responded to
a jury question regarding withdrawal of consent by instructing that "consent initially given
could be withdrawn and if the intercourse continued through use of force or threat of force ...
the act at that point was no longer consensual [and] this would constitute the crime of rape."
n82 The North Carolina Supreme Court held that this instruction was erroneous and that the
defendant had to be granted a new trial; it found that the concept of withdrawal of consent
applies only when there is evidence of more than one act of intercourse between the victim
and defendant. n83 The court reasoned that "if the actual penetration is accomplished with the
woman's consent, the accused is not guilty of rape, although he may be guilty of another
crime because of his subsequent actions." n84
Finally, a California appellate court ruled in People v. Vela n85 that if consent is given at the
moment of penetration, the act of intercourse is shielded from being considered rape - "the
presence or absence of consent at the moment of initial penetration appears to be the crucial
point in the crime" of rape. n86 The Vela court, relying on California case and statutory law to
support its ruling, noted that the state's penal code indicated that penetration was "sufficient
to complete the crime" of rape. n87 More significantly, the court discussed the California
Supreme Court's requirement that a victim be alive at the time of penetration for a rape
conviction to stand, since under the penal code "the essential guilt of rape consists in the
outrage to the person and feelings of the female." n88 The Vela court found that when a
woman initially consents to intercourse, the penetration by a man "cannot constitute a
violation of her womanhood nor cause outrage to her person [*2358] and feelings"; n89
therefore, the essential harm of rape is absent in the withdrawn-consent scenario. According
to the court, the defendant may be guilty of assault and battery, but not rape. n90
Seven state courts - in Alaska, California (overturning the decision in Vela), Connecticut,
Kansas, Maine, Minnesota, and South Dakota - have explicitly held that a woman can
withdraw consent after penetration. Five of these courts based their rulings, at least in part,
on how sexual intercourse is defined by their respective state's statute. The Minnesota and
Alaska courts found that the language of their statutes allow a broader definition of sexual
intercourse than the act of penetration. n91 The Connecticut and Kansas courts interpreted
their statutes, which appeared to define intercourse as the act of penetration, as establishing
the minimum required to define an act as sexual intercourse. n92 Maine's Supreme Judicial
Court relied on its statutory definition, as well as the common lexicon, to broaden its definition
of sexual intercourse. n93 California and South Dakota courts did not rely on the statutory
definition of intercourse. n94
[*2359] The critical element in establishing rape in cases of postpenetration withdrawal of
consent is the continuation of sexual intercourse under compulsion. n95 Only a few of those
courts recognizing postpenetration rape have attempted to define the nature of the
compulsion that would constitute rape under these circumstances. The Supreme Judicial Court
of Maine noted that:
The determination of when ongoing sexual intercourse is transformed from a consensual joint
exercise to unilateral action by one party forced upon an unwilling partner is little different
from the determination that has to be made in applying the "voluntary social companion'
defense ... . The dramatic change from the role of a voluntary participant to that of a victim
compelled involuntarily to submit to the sexual intercourse is a distinct one. n96
According to the court, this transformation takes place when the defendant compels continued
intercourse "for a period" after the victim revokes her original consent. n97 It appears that
persistence in unwanted intercourse satisfies the element of compulsion. The Kansas Court of
Appeals in Bunyard seemed to agree with this interpretation, holding that "when consent is
withdrawn, continuing sexual intercourse for 5 to 10 minutes is not reasonable and constitutes
rape." n98 Neither court explicitly stated that there is a reasonable period to continue
intercourse - though this idea is implied in the rulings - or what amount of time would be
considered reasonable.
Of the postpenetration rape cases, the California case In re John Z. n99 has received the most
attention. During intercourse with the defendant, the victim stated that she had to go home;
he replied "just [*2360] give me a minute," and did not stop. n100 When she responded,
"no, I need to get home," he said, "just give me some time." n101 After she again indicated
that she had to get home, the defendant continued for another minute and a half. n102 The
California Supreme Court, in deciding that these circumstances constituted rape, overruled
Vela and found that consent can, in fact, be revoked after penetration. n103 The court held
that a revocation of consent during the act of intercourse effectively nullifies any earlier
consent and subjects a male to forcible rape charges if he persists. n104
B. Implications of Postpenetration Rape Doctrine
1. Conditional Consent to Intercourse. - Consider the following scenarios:
1) A woman consents to sexual intercourse with a man on the condition that he uses a
condom. He agrees but then proceeds to have intercourse without a condom.
2) A woman consents to sexual intercourse with a man on the condition that he agrees not to
ejaculate during intercourse. He disregards her wishes.
3) A woman consents to sexual intercourse. During intercourse, her partner becomes "rough,"
and she indicates that she does not consent to this type of sexual intercourse.
All of these scenarios involve a limited or conditional consent to sexual intercourse. In
recognizing postpenetration rape as "rape," some states recognize a limited or conditional
consent to sexual intercourse that rape law did not previously acknowledge. The revocation of
consent after penetration creates a mechanism through which sexual intercourse can be
conditioned on terms established prior to the actual act. A woman's consent is thereby defined
and limited by explicit and implicit terms. If postpenetration rape is not recognized, then
whatever terms the two parties set as a condition to intercourse can be ignored by the man
once intercourse has begun, even if the woman revokes her consent. Scenarios one and two
involve explicit terms established by the parties prior to intercourse, while scenario three
involves [*2361] an implicit understanding that, unless agreed to, "rough" sex would not be
a part of the sexual encounter. The mechanism by which these scenarios are transformed
from a voluntary sexual encounter into rape is the postpenetration revocation of consent
communicated by the woman and ignored by the man; at that point - not when the terms of
consent have been broken - the woman becomes an involuntary participant in the sexual
encounter and the act becomes rape. Therefore, defining revocation of consent as the moment
of transformation does not completely accord with conditional consent to intercourse. For
example, in scenario two, when the man breaks his promise not to ejaculate during
intercourse, the woman may not have the opportunity to establish the conditions of a
postpenetration rape (revocation of consent followed by continuation). However, these
conditions are a necessary protection for men, particularly in cases in which consent is limited
by implicit terms not expressed prior to intercourse.
2. A New Form of Rape? - John Z. sparked a public debate over what is considered rape. Some
praised the ruling, calling it "a significant step forward for victims." n105 Others were highly
critical:
If you want a guy to stop midway through the first act, pick another boyfriend. Say fiftyish.
Speaking of which, I keep coming back to this: Where's Daddy? Who didn't teach this girl the
rules of engagement? ...
... You don't take a boy to bed and then say "no." ...
... .
... I am prepared to defend males against the sort of insanity that makes them criminals for
not being able to read a girl's mind. Who exactly will bear witness to these "he said-she said"
debacles? What words will suffice to mean "Stop," if "I need to get home" is enough to convict
a boy of rape? ... .
John Z wasn't guilty of rape; he was guilty of being male. n106
On July 25, 2003, Illinois, in response to John Z., n107 passed a bill adding a postpenetrationrape provision to its sexual assault laws. n108 The public's response to the law has been
mixed. Advocates hope that [*2362] it will not only reduce the rate of sexual assaults in
Illinois, but will also educate women regarding their right to change their mind about having
sex at any point during a sexual encounter. n109 In addition, some feel it may persuade state
attorneys to prosecute cases in which there has been prior sexual intercourse. n110
However, others criticize the new law, arguing that it will only confuse jurors because
withdrawal of consent is not defined. As one defense attorney and professor of law noted, "I
think it's going to muddy it up for juries. Right now, there's either consent or not consent.
How do you determine if consent is taken back?" n111
This debate reflects the uncertainty that exists within the relatively new and minority doctrine
of postpenetration rape. The John Z. court identified two elements necessary to a finding of
postpenetration rape: (1) communication of revocation to the other party that is (2) ignored
by that party. n112 However, as the dissent noted, the court made no attempt to articulate
what constitutes force in the context of postpenetration rape. n113 All of the courts defining
postpenetration rape, including the John Z. court, essentially equated persistence after
revocation of consent with force. n114 In attempting to define the contours of this element of
persistence, the defendant in John Z. argued that when consent is initially granted, a male
should be permitted a reasonable window of time in which to withdraw and "quell his primal
urge." n115
The John Z. court, unlike those in Maine and Kansas, explicitly rejected the argument for
"reasonable time" to withdraw. However, although the court declined to provide any guidance
about when a defendant must cease intercourse after consent has been withdrawn, it
[*2363] found that this particular defendant had "ample time to withdraw but refused." n116
The vagueness of the persistence element of postpenetration rape illustrates the uneasiness
with which it sits as a proxy for force. According to this definition of postpenetration rape,
persistence is sufficient to satisfy the requirement of force after penetration has occurred, and
yet appears to be insufficient before penetration. This notion of intrinsic force harkens back to
the New Jersey Supreme Court's much-criticized finding in M.T.S. that the force inherent in
penetration was sufficient to establish that element of a forcible rape charge. n117 Yet most
states require some showing of force or the threat of force beyond penetration to establish a
rape claim. n118 While rape law's focus on establishing the elements of rape prior to
penetration traditionally placed disproportionate weight on prepenetration acts, the revocation
doctrine has oddly shifted disproportionate weight to acts after penetration. It suggests that a
woman who has affirmatively indicated a lack of consent should claim that her withdrawal of
consent occurred after penetration rather than before, so that the state will not be required to
prove force in excess of persistence on the defendant's part. This doctrine illustrates the gap
between forcible rape and unwanted sex. Postpenetration rape is a doctrine of unwanted sex,
while prepenetration rape is a doctrine of forced sex.
Although legal recognition of postpenetration rape is laudable, its inconsistency with the
doctrine of forcible rape may leave states that have yet to address this issue reluctant to
acknowledge that rape results when consent is revoked after penetration. One answer is to
identify postpenetration rape as a separate category of rape - distinct from the crime of
forcible rape. There is precedent for such a distinction in rape law, as several recognized
categories of rape require no showing of force - for example, rape by fraud and rape by drugs.
n119 In some categories of rape, such as consensual sex with a mentally retarded [*2364]
person or an underage person (statutory rape), the victim grants consent but the court
renders it invalid. n120 In the postpenetration rape context, consent has been and should be
rendered invalid, not because of the status of the victim or the duplicitous behavior of the
defendant prior to the rape, but because of the victim's shift in status from voluntary to
involuntary participant, as evidenced by the victim's withdrawal of consent followed by the
defendant's disregard for that withdrawal. Thus, postpenetration rape can be recognized as an
act of rape, but perhaps not of forcible rape. n121
Conclusion
After having spent so much time establishing the basic premise that "no" means "no," what is
now being witnessed is the beginning of a shift in attention to more complex issues of rape issues surrounding the presence, rather than the absence, of consent. Of primary importance
in acknowledging this complexity is the rejection of the idea that any consent during a sexual
encounter or even consent to sexual intercourse is generalized and nonspecific. Consent, even
consent to intercourse, has its limitations and its conditions. A woman must be able to consent
to sexual contact without creating the presumption that she has consented to sexual
intercourse. Similarly, a woman must be able to consent to sexual intercourse while retaining
the right to revoke that consent for any reason. Rape law, in acknowledging a woman's right
to say "no," must also respect her right to say "yes."
FOOTNOTES:
n1. While the legal term describing unlawful sexual intercourse may vary by state - "rape,"
"sexual assault," "unlawful sexual behavior" - for the purposes of this Note, the term "rape"
will be used. This Note also refers to the victim as a woman for the sake of simplicity.
n2. See Susan Estrich, Real Rape 100-02 (1987) (arguing that changed sexual mores have
undermined the "no" means "yes" philosophy traditionally enforced by the courts). But see
Charlene L. Muehlenhard & Lisa C. Hollabaugh, Do Women Sometimes Say No When They
Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex, 54 J.
Personality & Soc. Psychol. 872, 874 (1988). A survey of 610 undergraduate women at the
University of Texas found that 39.3% of respondents reported saying "no" to intercourse when
they meant "yes." See id. at 873-74. However, over three-fourths of the women who had
engaged in token resistance did so five or fewer times. See id. at 878.
n3. Cf. Alex Markels, The Rape Disconnect, L.A. Wkly., Oct. 24, 2003, News, at 20 ("[A] 2002
poll conducted by the Texas Association Against Sexual Assault found that while most
respondents understood that "No means no,' 47 percent of the men and women polled
believed that allowing touching under the clothes constitutes consent to sexual intercourse,
and nearly a third thought that agreeing to go back to someone's home after a date also
signals consent. Even more striking: About 25 percent of respondents said a woman can't
claim she was raped if she doesn't actively fight off the sexual advance.").
n4. See Marlene A. Attardo, Annotation, Defense of Mistake of Fact as to Victim's Consent in
Rape Prosecution, 102 A.L.R.5th 447, 447 (2002). Some states do not recognize mistake of
fact as a defense to rape. See, e.g., Commonwealth v. Lopez, 745 N.E.2d 961, 966, 969
(Mass. 2001) (finding that the mistake-of-fact doctrine has "very little application" to the
state's rape statute, but leaving open the possibility of reconsideration in special
circumstances); Commonwealth v. Williams, 439 A.2d 765, 769 (Pa. Super. Ct. 1982).
n5. For example, consider the following California jury instruction:
Evidence has been introduced for the purpose of showing that the defendant and (alleged
victim) engaged consensually in sexual intercourse on one [or more] occasions prior to the
charge against the defendant in this case.
If you believe this evidence, you should consider it only for the limited purpose of tending to
show that [(alleged victim) consented to the acts of intercourse charged in this case] [, or]
[the defendant had a good faith reasonable belief that (alleged victim) consented to the act of
sexual intercourse].
You must not consider that evidence for any other purpose.
1 California Jury Instructions: Criminal CALJIC 10.61.1 (7th ed. 2003) (alterations in original)
(emphasis added).
n6. Aya Gruber writes:
The marital exemption was a tort-type defense premised on the theory that a woman's
decision to marry implied consent to all sexual relations with her husband.
... The Model Penal Code observes that "marriage or equivalent relationship, while not
amounting to a legal waiver of the woman's right to say "no,' does imply a kind of generalized
consent that distinguishes some versions of the crime of rape from parallel behavior by the
husband."
Aya Gruber, Pink Elephants in the Rape Trial: The Problem of Tort-Type Defenses in the
Criminal Law of Rape, 4 Wm. & Mary J. Women & L. 203, 215-16 (1997) (citations omitted)
(quoting Model Penal Code and Commentaries 213.1 cmt. 8(c) at 344 (Official Draft and
Revised Comments 1980)).
n7. See Michelle J. Anderson, Marital Immunity, Intimate Relationships, and Improper
Inferences: A New Law on Sexual Offenses by Intimates, 54 Hastings L.J. 1465, 1486-96
(2003). Thirteen states - Alaska, Hawaii, Kansas, Louisiana, Maryland, Minnesota, Mississippi,
Ohio, South Carolina, Tennessee, Rhode Island, Washington, and Virginia - require separation
or divorce at the time of the assault before certain sexual offenses are legally recognized. See
id. at 1494-95, 1492 n.83 (citing state statutes). This requirement does not apply if force is
used. See id. at 1494 n.92. In twenty-four states and the District of Columbia, marital
immunity for sexual offenses has been abolished. See id. at 1468 & n.8 (citing state statutes).
n8. See id. at 1486 & n.70 (citing state statutes).
n9. See Lisa R. Eskow, Note, The Ultimate Weapon?: Demythologizing Spousal Rape and
Reconceptualizing Its Prosecution, 48 Stan. L. Rev. 677, 683-88 (1996) (discussing the failure
to recognize spousal rape as separate from domestic violence); id. at 685 (noting that some
scholars "locate spousal rape primarily within the battered woman's experience").
n10. See Anderson, supra note 7, at 1514-17; id. at 1514 ("The ongoing consent ideology,
applicable to all forms of intimate rape, is perhaps the most difficult and enduring problem
produced by the marital rape exemption.").
n11. See Gruber, supra note 6, at 221-25 (describing variations in rape shield laws among the
states). For a list of current rape shield statutes and relevant case law, see Tracey A. Berry,
Comment, Prior Untruthful Allegations Under Wisconsin's Rape Shield Law: Will Those Words
Come Back To Haunt You?, 2002 Wis. L. Rev. 1237, 1247 nn.57-58.
n12. See Anderson, supra note 7, at 1524-28 (arguing that the universal exception among
state rape shield laws allowing the introduction of prior sexual history between the defendant
and victim connotes an acceptance of the idea of ongoing consent vis-a-vis unmarried
couples).
n13. 312 S.E.2d 470 (N.C. 1984).
n14. Id. at 475 (emphasis added). Although the Alston court found that there was sufficient
evidence of lack of consent, it did not find substantial evidence of either actual or constructive
force and thus reversed the defendant's conviction for second-degree rape. See id. at 476.
n15. In addition, the Model Penal Code states:
Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious
bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor
upon the occasion of the crime and had not previously permitted him sexual liberties, in which
cases the offense is a felony of the first degree.
Model Penal Code 213.1(1) (1985) (emphasis added).
n16. See Del. Code Ann. tit. 11, 764 (1979) (repealed 1998); Haw. Rev. Stat. 707-730(1)
(1985) (repealed 1987).
n17. See Me. Rev. Stat. Ann. tit. 17-A, 252(3) (West 1964) (repealed 1987); State v. Wyer,
320 S.E.2d 92, 96 n.2 (W. Va. 1984) (providing the full text of W. Va. Code. 61-8B-3 (1976)
(repealed 1984)).
n18. Wyer, 320 S.E.2d at 96 (quoting W. Va. Code 61-8B-3(a)(iii)) (internal quotation mark
omitted).
n19. See Me. Rev. Stat. Ann. tit. 17-A, 252(3).
n20. State v. Hamilton, 501 A.2d 778, 780 (Del. Super. Ct. 1985) (quoting Model Penal Code
and Commentaries 213.1 cmt. 2 at 280 (Official Draft and Revised Comments 1980)), aff'd
mem., 515 A.2d 397 (Del. 1986).
n21. See, e.g., Gibbs v. State, No. 480, 1998 WL 977116, at 2 (Del. Nov. 19, 1998) (holding
that a jury instruction on voluntary social companions was unnecessary even though the
victim had drinks with the defendant and accompanied him to his motel room, because the
defendant was prosecuted for rape resulting in serious injury under a separate section of the
rape statute); State v. Freeman, No. IK 95-01-04469-R1, 1996 WL 453459, at 3 (Del. June
24, 1996) (finding that the defendant's claim for relief would fail on the merits because, even
though the victim was his wife and therefore his voluntary social companion, he was charged
under a separate section of the rape statute dealing with deadly weapons); Wyer, 320 S.E.2d
at 97 ("Where a voluntary social companion is involved, the State in proving first degree
sexual assault must show the initial prerequisite of sexual intercourse by forcible compulsion
on the victim. In addition, it must prove one of the aggravating circumstances, i.e., infliction
of serious bodily injury or employment of a deadly weapon.").
n22. Me. Rev. Stat. Ann. tit. 17-A, 252(3) (emphasis added). The fact that Maine made
voluntary social companionship a defense to Class A rape, rather than treat it as an element of
first-degree rape, made no practical difference because the prosecution had to disprove the
defense, once introduced, beyond a reasonable doubt. See State v. Grover, 460 A.2d 581, 584
(Me. 1983).
n23. Maine's statute simply provided that a defendant was guilty of rape if he had engaged in
sexual intercourse with any person, other than his spouse, who had submitted to the act as a
result of compulsion. The statute defined "compulsion" as "physical force, a threat of physical
force, or a combination thereof." Me. Rev. Stat. Ann. tit. 17-A, 251(1)(E).
n24. 459 A.2d 178 (Me. 1983).
n25. Id. at 179.
n26. Id. at 180 n.1.
n27. Ann Landers, A Male's Theory on Date Rape, S.F. Sunday Examiner/Chron., Aug. 4,
1991, at C2, quoted in Lynne Henderson, Getting To Know: Honoring Women in Law and in
Fact, 2 Tex. J. Women & L. 41, 46 (1993). Similarly, a 1979 survey of teenagers in Los
Angeles found that 54% believed aggressive sex was justified if the woman "led him on" and
that 51% thought it was justified when the woman "got him excited." See Gruber, supra note
6, at 213.
n28. See R. Lance Shotland & Lynne Goodstein, Just Because She Doesn't Want To Doesn't
Mean It's Rape: An Experimentally Based Causal Model of the Perception of Rape in a Dating
Situation, 46 Soc. Psychol. Q. 220, 224 (1983). For this study, 287 Penn State students were
given one of twelve versions of a dating scenario that varied the use of force by the male and
the onset of protest by the female, and were asked to rank the victim's level of responsibility
and her desire for sex. See id. at 222-23.
n29. See id. at 224 ("These results confirm the rape supportive myth that if a female "goes
too far,' such as by removing all of her clothes, a "red flag' is raised indicating to an observer
that she desires sex, and the male's behavior is not likely to modify this perception."). The
study also showed that when low force was used, the woman was blamed regardless of when
she began protesting, but when moderate force was used, the woman was blamed only after
she was undressed. See id. at 224-25.
n30. See id. at 226.
n31. Menachem Amir, Patterns in Forcible Rape 266 (1971).
n32. See Jane H. Aiken, Differentiating Sex from Sex: The Male Irresistible Impulse, 12 N.Y.U.
Rev. L. & Soc. Change, 357, 376-77 (1983-1984) (providing examples of how courts found
implied consent based on the behavior of the victim and used this finding to give light
sentences to convicted defendants); see also Jeanne C. Marsh et al., Rape and the Limits of
Law Reform 95-108 (1982) ("The evidence suggests that if a victim has ever been receptive to
the assailant's sexual advances - from "flirting' with him to having consensual intercourse with
him in the past - then officials will be likely to discount her report."). In 1992, an Austin grand
jury refused to indict a man who entered a woman's bedroom with a knife and had sex with
her because, at her request, he wore a condom. See Ross E. Milloy, Furor over a Decision Not
To Indict in a Rape Case, N.Y. Times, Oct. 25, 1992, 1, at 30. A second grand jury indicted the
defendant, and he was eventually convicted and sentenced to forty years in prison. See Carla
M. da Luz & Pamela C. Weckerly, Recent Development, The Texas "Condom-Rape" Case:
Caution Construed as Consent, 3 UCLA Women's L.J. 95, 103 & n.45 (1993). In 1989, a
Florida jury acquitted a defendant who threatened his victim with a knife because the victim
was wearing a tank top, a sheer, short skirt, and no underwear. See Acquittal in Rape Enrages
Women, St. Louis Post-Dispatch, Oct. 6, 1989, at 21A. One juror told reporters that the victim
"asked for it" and was "advertising for sex." Id. Florida law now precludes the introduction of
evidence "presented for the purpose of showing [the] manner of dress of the victim." Fla. Stat.
Ann. 794.022(3) (West 2000).
n33. See Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 96269.
n34. See id. at 966-67 ("Thirty-one state statutes as well as the [D.C.] code and the Uniform
Code of Military Justice do not mention resistance in the statutory language describing rape.
Six more states explicitly note in their criminal codes that physical resistance is not required to
substantiate a rape charge." (footnote omitted)); id. at 966 n.81, 967 n.82 (citing the
statutes). Three state statutes demand affirmative dissent by requiring the victim to express
lack of consent through words or conduct. See Neb. Rev. Stat. 28-318(8)(a) (1995); N.H. Rev.
Stat. Ann. 632-A:2(I)(m) (Supp. 2003); Utah Code Ann. 76-5-406(1) (1999); see also Neb.
Rev. Stat. 28-318(8)(b) ("The victim need only resist, either verbally or physically, so as to
make the victim's refusal to consent genuine and real and so as to reasonably make known to
the actor the victim's refusal to consent ... .").
n35. See Anderson, supra note 33, at 967-68 (arguing for the continued relevance of
resistance).
n36. In order to sustain a rape charge, states must typically prove the absence of consent
either as an element of the crime or as disproving an affirmative defense of consent. See id. at
1000-01 & nn.280-83. Yet instead of interpreting ""without consent' to mean the absence of
what is popularly understood to be "consent,'" courts have defined "without consent" as
"without affirmative consent and with affirmative dissent," thereby broadening the definition of
consent to include acquiescence. Dana Berliner, Note, Rethinking the Reasonable Belief
Defense to Rape, 100 Yale L.J. 2687, 2689 (1991).
n37. See Gruber, supra note 6, at 217.
n38. See id. at 216-17.
n39. See id. at 217-21 (describing examples of how judges and juries incorporate these tortlike principles when deciding rape cases).
n40. See, e.g., Ross v. State, 429 N.E.2d 942, 944 (Ind. 1982) (affirming the defendant's
conviction because his claim "that the only evidence of the threat of deadly force was that it
occurred after the rape had been completed belies the record"); State v. Jacques, 536 A.2d
535, 537 (R.I. 1988) (finding that a conviction of first-degree sexual assault required the use
or threatened use of force before penetration).
n41. In their sex offense statutes, several states define sexual intercourse as "penetration,"
"complete upon penetration," or "occuring upon any penetration, however slight." See, e.g.,
Ala. Code 13A-6-60(1) (1994) ("[Intercourse] occurs upon any penetration, however slight ...
."); Del. Code Ann. tit. 11, 761(e)(1) (2001) (same); Ark. Code Ann. 5-14-101(10) (Michie
Supp. 2003) ("[Intercourse] means penetration, however slight, of the labia majora by a
penis."); Cal. Penal Code 263 (Deering 1985) ("Any sexual penetration, however slight, is
sufficient to complete the crime [of rape]."); Conn. Gen. Stat. 53a-65(2) (2003) ("Penetration,
however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and
does not require emission of semen.").
n42. See, e.g., Lane v. State, 703 A.2d 180, 184 (Md. 1997) ("Consent to the act at any time
prior to penetration deprives the subsequent intercourse of its criminal character." (quoting
Hazel v. State, 157 A.2d 922, 925 (Md. 1960)) (internal quotation marks omitted)); People v.
Alcala, 234 N.W.2d 172, 174 (Mich. Ct. App. 1975) ("Consent or the failure to use the proper
resistance at any time prior to penetration precludes conviction for rape of a female over the
age of 16 years ... ."); State v. Auld, 67 A.2d 175, 180 (N.J. 1949) ("The general rule may be
summarized as follows: Consent must precede the penetration."); see also 75 C.J.S. Rape 11,
at 474 (1952); 2 Joel Prentiss Bishop, Bishop on Criminal Law 1122(6), at 833 (John M. Zane
& Carl Zollman eds., 9th ed. 1923) ("The true view is believed to be that when the offense has
been made complete by penetration, no remission by the woman or consent from her,
however quickly following, can avail." (footnote omitted)).
n43. See People v. Vela, 218 Cal. Rptr. 161, 164 (Ct. App. 1985) (noting that when a victim
consents during preparatory acts, withdraws consent immediately before penetration, and
communicates withdrawal of consent to the perpetrator, the act of intercourse that follows will
be rape); Battle v. State, 414 A.2d 1266, 1270 (Md. 1980) (noting that "although a woman
may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn
prior to the act of penetration, then it cannot be said that she has consented to sexual
intercourse"); Auld, 67 A.2d at 180 (noting that the jury was properly instructed that "consent
could be withdrawn at any stage during the preparatory acts" (internal quotation marks
omitted)); State v. Pisio, 889 P.2d 860, 869 (N.M. Ct. App. 1994) ("A person is entitled to
withdraw his or her consent or express a lack of consent to an act of criminal sexual
penetration at any point prior to the act itself ... ."); State v. Penland, 472 S.E.2d 734, 742
(N.C. 1996) ("Although the victim was a prostitute and initially sought a sexual encounter for
payment, consent to sexual intercourse can be withdrawn at any time prior to penetration.");
see also 75 C.J.S. Rape 11, at 474 (1952) ("Where the female consents, but then withdraws
her consent before penetration, and the act is accomplished by force, it is rape.").
n44. Colo. Rev. Stat. 18-3-401 (1986) (emphasis added). This section also states that a
"current or previous relationship shall not be sufficient to constitute consent." Id.
n45. Cal. Penal Code 261.6 (Deering Supp. 2003) ("Consent shall be defined to mean positive
cooperation in act or attitude pursuant to an exercise of free will." (internal quotation marks
omitted)).
n46. See Alex Markels, A Seismic Shift in Sex-Case Law, U.S. News & World Rep., Oct. 13,
2003, at 45, 45 (discussing Colorado's updated sexual assault laws, which implicitly include
the right to withdraw consent); Jeffrey Toobin, The Consent Defense, New Yorker, Sept. 1,
2003, at 40, 43 ("It is implicit in laws like the one in Colorado that consent can be withdrawn
in the course of a sexual encounter ... ."); see also Christina M. Tchen, Comment, Rape
Reform and a Statutory Consent Defense, 74 J. Crim. L. & Criminology 1518, 1542-44 (1983)
(discussing state statutes that define consent and the extent to which they eliminate the
resistance and implied-consent standards).
n47. Kobe Bryant, star of the Los Angeles Lakers, was charged in Colorado with sexual assault
after the alleged victim, an employee at the hotel where he was staying, reportedly went to
his room and consented to some sexual activity. See Markels, supra note 46, at 45 ("Sources
quoted in the Vail Daily said that a sexual encounter began consensually - something Bryant
has already stated publicly - but that the woman later demanded that he halt his advances.").
n48. Wis. Stat. Ann. 940.225(4) (West Supp. 2003).
n49. See D.C. Code Ann. 22-3001(4) (2001); 720 Ill. Comp. Stat. 5/12-179(a) (2002); Minn.
Stat. 609.341(4)(a) (2002); Wash. Rev. Code Ann. 9A.44.010(7) (West Supp. 2003).
n50. See In re M.T.S., 609 A.2d 1266, 1277 (N.J. 1992).
n51. 841 P.2d 961 (Cal. 1992) (en banc).
n52. 542 P.2d 1337 (Cal. 1975) (en banc).
n53. See Williams, 841 P.2d at 967 ("To characterize [the victim's consent to spend time with
the defendant] as a basis for a reasonable and good faith but mistaken belief in consent to
intercourse is ... to "revive the obsolete and repugnant idea that a woman loses her right to
refuse sexual consent if she accompanies a man alone to a private place.'" (quoting People v.
Williams, 283 Cal. Rptr. 518, 526 (Ct. App. 1991) (Low, P.J., dissenting))). California requires
substantial evidence of equivocal conduct before an instruction as to reasonable and good faith
but mistaken belief is given. See id. at 966.
n54. See id. at 963.
n55. See id. at 964. Williams claimed that after he entered the hotel room, the victim hugged
and kissed him and started removing her clothes. See id.
n56. See, e.g., People v. Athans, No. B160420, 2003 WL 22455900, at 12 (Cal. Ct. App. Oct.
30, 2003) (finding that although the evidence - lack of injury to the victim's arms, the fact
that the victim kept ten dollars given to her by the defendant, and the fact that she voluntarily
entered the defendant's car - could have suggested to the jury that the victim actually
consented to a sexual act for money, this evidence did not suggest that the defendant had a
reasonable but mistaken belief as to the victim's consent).
n57. 619 N.E.2d 276 (Ind. Ct. App. 1993).
n58. Id. at 286 ("The only consent that is a defense is the consent that immediately precedes
the sexual conduct; it is the defendant's honest and reasonable belief at that point in time,
and not at any other point, that is relevant."). In Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995),
the Seventh Circuit upheld the state court's denial of an instruction on mistake of fact and
found:
Possible manifestations of consent before [the victim] entered the bedroom would not be
enough evidence to require that an instruction on reasonable mistake be given. The law of
rape is not a part of the law of contracts. If on Friday you manifest consent to have sex on
Saturday, and on Saturday you change your mind but the man forces you to have sex with
him anyway, he cannot use your Friday expression to interpose, to a charge of rape, a defense
of consent or of reasonable mistake as to consent. You are privileged to change your mind at
the last moment.
Id. at 448 (citation omitted).
n59. See Tyson, 619 N.E.2d at 286-87.
n60. 599 N.E.2d 635 (Mass. App. Ct. 1992).
n61. See id. at 638-39.
n62. See id. at 638.
n63. See id.
n64. See id.
n65. See id. at 638-39. The court noted that because there was an issue whether the prior
sexual contact was consensual, "even assuming that the defendant's broad reading of the
term "sexual contact[]' ... is correct and that a jury could be permitted to consider sexual
contact other than intercourse, we see no error in the instruction given in this case." Id. at
638.
n66. 2d Crim. No. B147599, 2002 WL 64543 (Cal. Ct. App. Jan. 17, 2002).
n67. See id. at 2.
n68. See id.
n69. See id. For the complete instruction, see supra note 5.
n70. Ray, 2002 WL 64543, at 2.
n71. See id.
n72. In the Tyson case, the evidence of intimate contact in the limousine would be relevant
under the theory of escalation to show the willing displacement to a more intimate location
after initial sexual contact.
n73. See generally Walter Kirn, When Sex Is Not Really Having Sex, Time, Feb. 2, 1998, at
30.
n74. See Stephanie A. Sanders & June Machover Reinisch, Would You Say You "Had Sex" If ...
?, 281 JAMA 275, 275-77 (1999) (finding that 59% of sampled students did not define oralgenital contact as "having sex"); see also Laura Bogart et al., Is It "Sex"?: College Students'
Interpretations of Sexual Behavior Terminology 37 J. Sex Res. 108, 111 & tbl.1 (2000)
(finding that students' labeling of specific acts as "sex" depended on several factors such as
type of behavior (vaginal, anal, or oral sex) and whether participants in the behavior reached
orgasm); Laura Sessions Stepp, Parents Are Alarmed by an Unsettling New Fad in Middle
Schools: Oral Sex, Wash. Post, July 8, 1999, at A1.
n75. 414 A.2d 1266 (Md. 1980).
n76. Id. at 1268. In this case the victim and defendant had two very different versions of
events. The victim stated that she went to Battle's home to see a radio he wanted to sell and
that once she was upstairs in his room, he "got nasty" and raped her. Battle said that the
victim "invited him" to have sex with her and that he found her disrobed in his bedroom. He
denied any sexual contact. Id. at 1267.
n77. Id. at 1268 (quoting the trial court judge) (internal quotation marks omitted).
n78. See id. at 1270. The Battle court determined that "authorities are unanimous in the view
that consent subsequent to the act of intercourse will not prevent its being rape." Id. at 1269.
n79. Id. at 1270. The court held that in light of the ambiguous question from the jury and the
confusing answer given by the judge, the conviction of the defendant should be reversed and
the case remanded for a new trial. See id. at 1271.
n80. 254 S.E.2d 760 (N.C. 1979).
n81. Id. at 762.
n82. Id. at 761 (quoting the trial court judge) (internal quotation marks omitted). The
defendant testified that the sex was consensual and that during intercourse the victim started
yelling about stomach pains. The victim testified that the defendant hit her in the face,
threatened to beat her, and then forced her to have sexual intercourse, stopping only when
she complained of stomach pains and started shaking. Id. at 760-61.
n83. Id. at 761.
n84. Id. at 762 (emphasis added). The court also stated: "Under the court's instruction, the
jury could have found the defendant guilty of rape if they believed [the victim] had consented
to have intercourse with the defendant and in the middle of that act, she changed her mind.
This is not the law." Id. at 761-62.
n85. 218 Cal. Rptr. 161 (Ct. App. 1985).
n86. Id. at 164.
n87. Id. (emphasis added) (quoting Cal. Penal Code 263 (Deering 1985)).
n88. Id. at 164-65 (alteration in original) (quoting People v. Stanworth, 522 P.2d 1058, 1070
n.15 (Cal. 1974) (en banc) (alteration in original) (quoting Cal. Penal Code 263)) (internal
quotation marks omitted).
n89. Id. at 165. The court further noted:
If she withdraws consent during the act of sexual intercourse and the male forcibly continues
the act without interruption, the female may certainly feel outrage because of the force
applied or because the male ignores her wishes, but the sense of outrage to her person and
feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual
violation of her womanhood.
Id.
n90. Id.
n91. The Alaska Court of Appeals found that its statute defining sexual penetration, by
proscribing a broader range of conduct than genital sexual intercourse, did not limit sexual
penetration to the moment of initial penetration. See McGill v. State, 18 P.3d 77, 84 (Alaska
Ct. App. 2001). The Minnesota Court of Appeals found the scope of its state's statutory
language broader than that of other states' that had previously rejected postpenetration rape.
See State v. Crims, 540 N.W.2d 860, 865 (Minn. Ct. App. 1996).
n92. See State v. Siering, 644 A.2d 958, 962 (Conn. App. Ct. 1994) (construing the statutory
reference to penetration as "establishing the minimum amount of evidence necessary to prove
that intercourse has taken place"); State v. Bunyard, 75 P.3d 750, 756 (Kan. Ct. App. 2003)
(finding that the statutory definition nowhere states that the act of sexual intercourse ends
with penetration). The Connecticut court concluded that absurd results would stem from a
finding that only initial penetration constitutes intercourse - "meaning that if intercourse is
continued by force after the victim withdrew consent, it would not constitute sexual assault
unless the victim, upon revoking consent and struggling against the defendant, succeeds in
momentarily displacing the male organ, followed by an act of repenetration by the defendant."
Siering, 644 A.2d at 962.
n93. See State v. Robinson, 496 A.2d 1067, 1069 n.2 (Me. 1985) (using the state's statutory
definition of sexual intercourse as "any penetration of the female sex organ by the male sex
organ," as well as the understanding within the common lexicon that continued penetration is
sexual intercourse, to find that a postpenetration rape can occur (quoting Me. Rev. Stat. Ann.
tit. 17-A, 251(1)(B) (West 1983))).
n94. See State v. Jones, 521 N.W.2d 662, 672 (S.D. 1994) (finding only that "this court has
never held that initial consent forecloses a rape prosecution," and declining to adopt the
position of the Vela court). The California Supreme Court relied not on its definition of
intercourse, but on its definition of rape to find that postpenetration rape can occur. See
People v. John Z. (In re John Z.), 60 P.3d 183, 186 (Cal. 2003) (citing Cal. Penal Code 261,
263 (Deering 1985 & Supp. 2003)).
n95. See John Z., 60 P.3d at 185 (finding that the statutory requirements of rape are met
when a victim withdraws consent and is forced to complete the act); Bunyard, 75 P.3d at 756
("It does not matter if the force or fear exists at the initiation of the act [of sexual intercourse]
or whether it comes after consent is withdrawn... . The critical element is the force or fear.");
Robinson, 496 A.2d at 1070 (agreeing with the Way court that a mere change of mind during
intercourse does not turn consensual sex into rape, and finding that the critical element is the
continuation under compulsion); Crims, 540 N.W.2d at 865 (finding that the forcible
continuation of initially consensual sexual relations did constitute rape).
n96. Robinson, 496 A.2d. at 1071 (citations omitted).
n97. Id. ("If the jury credited defendant's story to the extent of his claim that the prosecutrix
changed her mind in the middle of their consensual sexual intercourse, it could, under the
court's instruction, have returned its guilty verdict only if it found as a fact that defendant
compelled the woman to submit to his continued intercourse with her for a period after she
had revoked her original consent." (third emphasis added)).
n98. Bunyard, 75 P.3d at 756.
n99. 60 P.3d 183.
n100. Id. at 185. The victim testified that she struggled from the very beginning of her
encounter with the defendant, and the court recognized that the evidence of her initial consent
to intercourse was "hardly conclusive." Id.
n101. Id.
n102. Id.
n103. See id. at 186-87. Three years before John Z., the appellate court in People v.
Roundtree, 91 Cal. Rptr. 2d 921 (Cal. Ct. App. 2000), declined to follow the Vela ruling. See
id. at 924. In Roundtree, the thirty-nine-year-old defendant claimed that the fifteen-year-old
victim consented to sex but told him to stop at one point because she heard someone coming;
the victim claimed that she never consented. See id. at 922-23.
n104. See John Z., 60 P.3d at 186.
n105. Harriet Chiang, Court Says Sex After Rescinded Consent Is Rape, S.F. Chron., Jan. 7,
2003, at A17 (quoting Professor Douglas Beloof, director of the National Crime Victim Law
Institute).
n106. Kathleen Parker, Editorial, In California, Rape Becomes Her Choice, Grand Rapids Press,
Jan. 11, 2003, at A12.
n107. See generally Kathryn Masterson, Officials Hope Rape Law Brings Offenders to Trial,
Chi. Trib., Nov. 28, 2003, at 4.
n108. The law provides: "A person who initially consents to sexual penetration or sexual
conduct is not deemed to have consented to any sexual penetration or sexual conduct that
occurs after he or she withdraws consent during the course of that sexual penetration or
sexual conduct." Public Act 93-389, sec. 5, 12-17(c), 2003 Ill. Legis. Serv. 2217, 2217 (West),
available at http://www.legis. state.il.us/legislation/publicacts/fulltext.asp?name=093-0389
(last visited Apr. 10, 2004).
n109. See Masterson, supra note 107.
n110. See Legislators: It's Still Rape, Even If She Once Said Yes, Chi. Sun-Times, Feb. 12,
2003, at 10. As Mary Ratliff, a sexual assault counselor in Springfield, Illinois, explained:
When you go and talk to a state's attorney about a case, if there is consensual sex involved
before the assault or before the female says no, the attorney is oftentimes reluctant to file any
kind of charges, saying a jury wouldn't understand... . This bill would help a jury to
understand, and give them permission to say that when she says no, it means no, regardless
of whether there was sexual activity before.
Id. (internal quotation marks omitted).
n111. Id. (quoting Richard Kling, defense attorney and professor at Kent College of Law)
(internal quotation marks omitted). Another law professor at Chicago-Kent questioned the
significance of this law and the impact it will have on acquaintance rape cases: "It's still a hesaid, she-said, and they're very difficult to prove ... . It's very unclear that this law will make
any difference in any individual case." Dave Orrick, Updated Illinois Rape Law Clarifies That No
Always Means No, Chi. Daily Herald, Aug. 15, 2003, Neighbor, at 1 (quoting Professor
Katharine Baker) (internal quotation marks omitted), 2003 WL 60097365.
n112. See In re John Z., 60 P.3d 183, 185 (Cal. 2003). The court also noted that a victim's
outrage is not an element of the crime of rape; therefore, rape is not defined by the degree of
outrage suffered. See id. at 186.
n113. Id. at 188 (Brown, J., dissenting).
n114. See id.; see also supra pp. 2358-59.
n115. John Z., 60 P.3d at 187 (quoting the defendant).
n116. Id.
n117. See, e.g., Recent Case, State ex rel. M.T.S., 609 A.2d 1266 (N.J. 1992), 106 Harv. L.
Rev. 969, 971-74 (1993).
n118. See Joshua Mark Fried, Forcing the Issue: An Analysis of the Various Standards of
Forcible Compulsion in Rape, 23 Pepp. L. Rev. 1277, 1292-94 (1996) (discussing the force
requirement in rape); Daphne Edwards, Comment, Acquaintance Rape and the "Force"
Element: When "No" Is Not Enough, 26 Golden Gate U. L. Rev. 241, 258-64, 271-83 (1996)
(discussing the operation of the force requirement in acquaintance rape cases and its
hindrance of convictions in such cases).
n119. See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 52-69,
108-18 (1998). Some states consider it rape when the victim consents to intercourse with her
psychotherapist, doctor, or clergy. See id. at 92-101. This form of sexual assault is not
recognized as a crime by all states, and many of the states that prohibit this conduct typically
prescribe a reduced degree of felony. See id. See generally Patricia J. Falk, Rape by Drugs: A
Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev 131 (2002).
n120. See Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev.
315, 343-44 (1997). A majority of states do not recognize mistake of fact as a defense to
statutory rape. See Ruth Jones, Inequality from Gender-Neutral Laws: Why Must Male Victims
of Statutory Rape Pay Child Support for Children Resulting from Their Victimization?, 36 Ga. L.
Rev. 411, 427 nn.101-02 (2002) (citing the fourteen states that now recognize mistake of fact
with respect to age as a defense to statutory rape).
n121. The use of force after penetration can be considered an aggravating factor increasing
the baseline degree of felony for a postpenetration rape charge.