fatherphil

how about if a girl says "it hurts, please stop"?

Arken

I think you're looking at this in a very black-and-white way which is my initial criticism to the law too. There are certainly instances when it is clearly rape if a woman tells a man to stop even after consetual penetration has occurred. There are also many instances when it may or may not be rape such as the case in California where the girl was unclear and instances where it is not at all rape, but revenge. That is why this law has a great chance of being a big problem and why it worries me.

fatherphil

then again, maybe the sex act has to become a more formal occasion.

Arken

That won't happen without a fundamental change to human psyche. Sex has always been a part of our more animalistic selves and unless we have a way to change that through genetics or something I don't see that happening.

fatherphil

but isn't the fact that we are able to rise above our "animal" instincts the thing that sets us apart from animals?
if not, then why has the slection process in mating become so unimportant in our species?

Arken

I wasn't aware that the selection process has become so unimportant. Doesn't the fact that the beauty products industry continues to flourish even when other industries do badly show the opposite?

pug846

It would be nice if those of you that believe this law is so ridiculous would actually read the case that prompted this instead of quoting from popular accounts. Surprise, surprise, they don’t tell even one-tenth of the story. (I caught myself before I wrote “half-truth,” because it doesn’t even approach a half-truth.) It’s comforting to know that anytime someone wants to deride to legal system they have to distort the truth (e.g., the McDonald’s hot-coffee case) or they bash the system for allowing a silly case to make it to the court’s in the first place, ignoring, of course, because it’s inconvenient, that the case was summarily dismissed anyway (e.g., the gentlemen that sued fast food restaurants for his obesity).

The law is intended to cover cases like the one Tron described and not the “he waited six seconds before he pulled out”. Rape is one of the most unreported crimes and it’s nearly impossible to get a conviction unless you get a real break.

Below is the edited down opinion of the California Supreme Court. I cut out a middle chunk, which discussed past cases dealing with the same issue, and the dissent. I’ve bolded the central holding regarding when the male needs to stop. I think it should alleviate at least some of your concerns regarding the doomsday scenario’s you’ve provided:

We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161 (Vela ) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846, 91 Cal.Rptr.2d 921 (Roundtree ) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.

The juvenile court, after holding a contested jurisdictional hearing on a unitary petition filed on behalf of John Z. (defendant), found that he committed forcible rape and that his previous juvenile court disposition had been ineffective. (Further undesignated statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch. On appeal, defendant contends the evidence is insufficient to sustain the finding that he committed forcible rape. We disagree.

FACTS

The following facts are largely taken from the Court of Appeal opinion in this case. During the afternoon of March 23, 2000, 17-year-old Laura T. was working at Safeway when she received a call from Juan G., whom she had met about two weeks earlier. Juan wanted Laura to take him to a party at defendant's home and then return about 8:30 p.m. to pick him up. Laura agreed to take Juan to the party, but since she planned to attend a church group meeting that evening she told him she would be unable to pick him up.

Sometime after 6:00 p.m., Laura drove Juan to defendant's residence. Defendant and Justin L. were present. After arranging to have Justin L.'s stepbrother, P. W., buy them alcohol, Laura picked up P.W. and drove him to the store where he bought beer. Laura told Juan she would stay until 8:00 or 8:30 p.m. Although defendant and Juan drank the beer, Laura did not.

During the evening, Laura and Juan went into defendant's parents' bedroom. Juan indicated he wanted to have sex but Laura told him she was not ready for that kind of activity. Juan became upset and went into the bathroom. Laura left the bedroom and both defendant and Justin asked her why she "wouldn't do stuff." Laura told them that she was not ready.

About 8:10 p.m., Laura was ready to leave when defendant asked her to come into his bedroom to talk. She complied. Defendant told her that Juan had said he (Juan) did not care for her; defendant then suggested that Laura become his girlfriend. Juan entered the bedroom and defendant left to take a phone call.

When defendant returned to the bedroom, he and Juan asked Laura if it was her fantasy to have two guys, and Laura said it was not. Juan and defendant began kissing Laura and removing her clothes, although she kept telling them not to. At some point, the boys removed Laura's pants and underwear and began "fingering" her, "playing with [her] boobs" and continued to kiss her. Laura enjoyed this activity in the beginning, but objected when Juan removed his pants and told defendant to keep fingering her while he put on a condom. Once the condom was in place, defendant left the room and Juan got on top of Laura. She tried to resist and told him she did not want to have intercourse, but he was too strong and forced his penis into her vagina. The rape terminated when, due to Laura's struggling, the condom fell off. Laura told Juan that "maybe it's a sign we shouldn't be doing this," and he said "fine" and left the room. (Although Juan G. was originally a codefendant, at the close of the victim's testimony he admitted amended charges of sexual battery and unlawful sexual intercourse.

Laura rolled over on the bed and began trying to find her clothes; however, because the room was dark she was unable to do so. Defendant, who had removed his clothing, then entered the bedroom and walked to where Laura was sitting on the bed and "he like rolled over [her] so [she] was pushed back down to the bed." Laura did not say anything and defendant began kissing her and telling her that she had "a really beautiful body." Defendant got on top of Laura, put his penis into her vagina "and rolled [her] over so [she] was sitting on top of him." Laura testified she "kept ... pulling up, trying to sit up to get it out ... [a]nd he grabbed my hips and pushed me back down and then he rolled me back over so I was on my back ... and ... kept saying, will you be my girlfriend." Laura "kept like trying to pull away" and told him that "if he really did care about me, he wouldn't be doing this to me and if he did want a relationship, he should wait and respect that I don't want to do this." After about 10 minutes, defendant got off Laura, and helped her dress and find her keys. She then drove home.

On cross-examination, Laura testified that when defendant entered the room unclothed, he lay down on the bed behind her and touched her shoulder with just enough pressure to make her move, a nudge. He asked her to lie down and she did. He began kissing her and she kissed him back. He rolled on top of her, inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him. She was on top of him for four or five minutes, during which time she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop. He said, "just give me a minute," and she said, "no, I need to get home." He replied, "give me some time" and she repeated, "no, I have to go home." Defendant did not stop, "[h]e just stayed inside of me and kept like basically forcing it on me." After about a "minute, minute and [a] half," defendant got off Laura.

Defendant testified, admitting that he and Juan were kissing and fondling Laura in the bedroom, but claimed it was with her consent. He also admitted having sexual intercourse with Laura, again claiming it was consensual. He claimed he discontinued the act as soon as Laura told him that she had to go home.

DISCUSSION

Although the evidence of Laura's initial consent to intercourse with John Z. was hardly conclusive, we will assume for purposes of argument that Laura impliedly consented to the act, or at least tacitly refrained from objecting to it, until defendant had achieved penetration. (But see § 261.6 [defining the type of consent at issue under section 261 as "positive cooperation in act or attitude pursuant to an exercise of free will"].) As will appear, we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.

(edited note: I’ve cut out a chunk of the opinion dealing with past cases that have dealt with the same issue)

In the present case, assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence shows that she withdrew her consent and, through her actions and words, communicated that fact to defendant. Despite the dissent's doubt in the matter, no reasonable person in defendant's position would have believed that Laura continued to consent to the act. As the Court of Appeal below observed, "Given [Laura's testimony], credited by the court, there was nothing equivocal about her withdrawal of any initially assumed consent."

Vela appears to assume that, to constitute rape, the victim's objections must be raised, or a defendant's use of force must be applied, before intercourse commences, but that argument is clearly flawed. One can readily imagine situations in which the defendant is able to obtain penetration before the victim can express an objection or attempt to resist. Surely, if the defendant thereafter ignores the victim's objections and forcibly continues the act, he has committed "an act of sexual intercourse accomplished .... [] ... against a person's will by means of force ...."

Defendant, candidly acknowledging Vela's flawed reasoning, contends that, in cases involving an initial consent to intercourse, the male should be permitted a "reasonable amount of time" in which to withdraw, once the female raises an objection to further intercourse. As defendant argues, "By essence of the act of sexual intercourse, a male's primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge ...."

We disagree with defendant's argument. Aside from the apparent lack of supporting authority for defendant's "primal urge" theory, the principal *763 problem with his argument is that it is contrary to the language of section 261, subdivision (a)(2): Nothing in the language of section 261 or the case law suggests that the defendant is entitled to persist in intercourse once his victim withdraws her consent.

In any event, even were we to accept defendant's "reasonable time" argument, in the present case he clearly was given ample time to withdraw but refused to do so despite Laura's resistance and objections. Although defendant testified he withdrew as soon as Laura objected, for purposes of appeal we need not accept this testimony as true in light of Laura's contrary testimony. As noted above, Laura testified that she struggled to get away when she was on top of defendant, but that he grabbed her waist and pushed her down onto him. At this point, Laura told defendant that if he really cared about her, he would respect her wishes and stop.

Thereafter, she told defendant three times that she needed to go home and that she did not accept his protestations he just needed a "minute." Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home. According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and "just stayed inside of me and kept like basically forcing it on me," for about a "minute, minute and [a] half." Contrary to the dissent's concerns, the force defendant exerted in resisting Laura's attempts to stop the act was clearly ample to satisfy section 261, subdivision (a)(2).

Although the dissent herein would prefer more guidance for future cases, this is an appeal from a juvenile court adjudication rather than a jury trial, and the briefing does not address what pinpoint instructions, if any, might be appropriate in these withdrawn consent cases. Accordingly, we do not explore or recommend instructional language governing such matters as the defendant's knowledge of the victim's withdrawal of consent, the possibly equivocal nature of that withdrawal, or the point in time at which defendant must cease intercourse once consent is withdrawn.

Theli

You mean like signing contracts before having sex stating that it is fully consensual?
Not much in this life is as consensual as this law would have it be.
Would anyone on this board want to have "formal sex", whatever that means? Is sex really supposed to be formal?
I'm starting to think the people who writes these laws never has any...
The death of romance

Derec

Nonsense. In some states, such as California, a conviction can be obtained without proving the rape beyond reasonable doubt. There is also a high rate of false rape charges that in many cases lead to wrongful convictions and destroy a man's life. What you are saying is just feminist propaganda.

Also, the story is Laura's version of events. I am sure the defendent had quite a different story. Why is her version of events taken for a fact?

How was the California case been proven beyond reasonable doubt?
Read this and weep:
"Although defendant testified he withdrew as soon as Laura objected, for purposes of appeal we need not accept this testimony as true in light of Laura's contrary testimony."

What happened to "proof beyond reasonable doubt" and "in dubio pro reo". The court blatantly disregarded these important legal principles.
I think SCOTUS should rule on this ...

UMoC

P.S.: The text you quoted specifically disagrees with the "reasonable time" basically stating that the law would apply to the "six second" situation you said it did not apply to.

pug846

UglyManOnCampus said:

I see. Because you don’t think there is proof beyond a reasonable doubt, there wasn’t. Shall we cancel all jury trials in California and have them at your house instead?

Because the case is on appeal and in every criminal case, the light is viewed most favorably to uphold the conviction. (The purposes of the appellate courts is not to make findings of fact, but rule what the law is.) The story is not only from Laura, but from other witnesses, including the other kid that pleaded guilty.

Yeah, those crazy California courts; using the same standard of review as every other state in the union and required by the Constitution. Fucking liberal courts!

What are you talking about? You’re clearly blissfully ignorant about standard operating procedure for every single appellate court in the nation, including the Supreme Court.

The purposes of the appellate courts is not to retry the case at every level. The appellate court must rule on whether the trial court erred on some matter of law. The appellate court does not put witnesses on the stand nor does it gather more facts. It simply looks at the trial court’s legal rulings and decides whether it made an error. At trial, the trial court judge decides whether legally, there is enough evidence that a rational trier of fact could find beyond a reasonable doubt that a rape took place. Since this was a bench trial, the judge was the trier of fact. He or she is the one that faced the witnesses, heard them testify, etc. He or she was well within his or her discretion to believe the girl beyond a reasonable doubt. (But that’s right, since you’re so familiar with the case, I’m sure you are in a better position than the judge to know who was lying. It was the dumb bitch, right? I’m sure she was asking for it.) So, the California Supreme court upheld the judge’s ruling that a rational trier of fact could find that the girl was telling the truth beyond a reasonable doubt.

The standard, given the context of what the court did rule on, is silly. If the girl uses force to stop the guy, the guy shouldn’t have a reasonable amount of time to keep going at it. This isn’t a case where the girl whispers, please stop, and the guy just keeps going. But when the girl actively tries to stop the sex, but the guy refuses. Again, the holding was: we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.

So, do you agree with that standard? If it can be proved beyond a reasonable doubt that the victim attempted to stop the act, but the defendant forcibly continues despite the objection, then it should be rape?