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When is it rape?

By Wendy McElroy
web posted January 20, 2003

On Jan. 6, the California Supreme Court ruled 6-1 that if a woman rescinds consent during the sex act, the man is guilty of rape if he does not stop immediately.

It also ruled that statements such as "I should go home" constitute an unambiguous "no" on the woman's part. The definition of rape has evolved again.

What are the facts of the case? Seventeen-year-old Laura T. attended an otherwise all-male party at which she did not drink. After allowing two teenaged boys to undress and fondle her in a bedroom -- acts she admitted enjoying -- she had sex with each. Laura did not say the word "no" nor did she resist. Instead, she said, "I have to go home."

Because John Z. continued for approximately four minutes after she first expressed what might have been reluctance, he was convicted of rape.

Rape is an abomination no civilized society can tolerate. But precisely because rape is such a serious crime, it is important to establish explicit and reasonable standards by which to judge the guilt or innocence of those accused.

If a woman (or man) clearly says "stop" during consensual sex, then the partner should be morally and legally constrained to do just that -- stop. But what if the partner proceeds in good faith on the basis of a "yes" given moments before? Common sense dictates that the rescinded "no" must be explicit and that the partner should have a reasonable amount of time to grasp the changed circumstances.

But the court ruled that sex becomes rape the instant the woman rescinds consent and it provided no guidance on what constitutes the withdrawal of consent.

The sole dissenting voice, Justice Janice Rogers Brown, found that none of Laura's statements were "unequivocal." Her requests to go home could have been interpreted as a need for reassurance or a request for greater speed.

This is a nontrivial point. The law assumes that all adults are responsible agents in sexual matters. (Laura T.'s age was not introduced as a significant factor in the court's conclusion.) The law assumes that women and men are able to make their wants known and, so, have a responsibility to do so.

As for the timing issue ... the court relied heavily upon John Z.'s failure to desist immediately. But, as Brown observed, the decision "does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force?"

John Z.'s attorney, Carol Foster, argued that her client should have been given a "reasonable amount of time" in which to withdraw. This is also nontrivial. If John Z. had a reasonable belief of consent, then he should also have a reasonable amount of time to realize circumstances had changed.

Brown -- the dissenting judge -- continued, "and even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?" In essence, Brown is asking whether consensual sex that becomes nonconsensual at some point should be treated in the same manner as a back alley rape committed at the point of a knife. Or should there be another category of rape, such as negligence, which carries a lesser penalty?

No one wants to return to the '70s when women who took rape cases to trial were emotionally shredded in cross-examinations. None of us long for the days when the reports of a raped woman were summarily dismissed by a cynical police department. But the recent California decision is not a remedy for such problems surrounding the issue of rape.

Sixties feminism deserves a lot of credit for bringing sanity to bear on the crime of rape. They broke down a mythology that claimed only "bad" girls who walked alone at night in tight clothing were raped. Research showed exactly the opposite to be true. Every woman was vulnerable to attack, even in her own home and especially from men she knew.

Sixties feminism attacked a court system that believed rape complainants were less reliable than other victims. Feminists attacked the "reasonable resistance" requirement imposed by most states; that is, rape was not deemed to have occurred unless the woman had manifested strenuous resistance. Meanwhile, other crimes did not require a victim to resist in order for a crime to have occurred.

The prosecution of rape used to be skewed against women. Now it seems to be skewed against men. No longer is criminal intent necessary for criminal guilt. No longer is an explicit "no" necessary for the withdrawal of consent. And men may be well advised to keep a stopwatch as well as contraceptives by the bedside.

The Laura T. decision may well become a Pandora's Box for false accusations of rape. No longer can the man point to a woman's explicit consent because she can now argue that -- once penetration occurred -- she changed her mind. She need not utter the word "no!" She can merely say, "I have to go home."

As the former mainstream feminist professor Erin O'Connor notes in her blog, "this ruling neatly dispenses with the idea that rape necessarily involves force, and replaces it with a definition of consent that is as uncertain and shifting as the woman who wields it."

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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