Brief Fact Summary. The minor, John Z. (the minor), had sexual intercourse with the victim, Laura T (the victim). The initial interaction, namely kissing, between the two was consensual, but the victim refused to have sexual intercourse with the minor.
Synopsis of Rule of Law. Rape is the act of forcible sexual intercourse. It does not matter when the victim withdraws her consent, so long as the victim communicates said withdrawal of consent and the defendant ignores it.
Points of Law - Legal Principles in this Case for Law Students.
Force, within the meaning of section 261, subdivision (a)(2), is that level of force substantially different from or substantially greater than that necessary to accomplish the rape itself.
Facts. The victim had been acquainted with another minor Juan G., for about two weeks, when he called her to ask for a ride to the minor’s house for a party. The victim assented and despite initially saying she would not stay because she had other plans, she remained at the party. The minor and Juan G. drank beer at the party, but the victim did not. During the evening, the victim and Juan G. went into the minor’s parents’ bedroom where Juan G. asked the victim to have sex. The victim stated that she was not ready. Sometime later, the minor asked the victim to talk to him in his bedroom. He told her that Juan G. did not like her, but the minor wanted the victim to be his girlfriend. Juan G. then entered the bedroom and the minor went to take a phone call. When the minor returned, he asked if it was her fantasy to have sex with two guys. The victim replied that it was not, but they began to kiss her and remove her clothing. The victim resisted, but they began to fondle her breasts and
“finger” her. The victim enjoyed herself at first. The victim objected, though, when Juan G. removed his pants and put on a condom. He then attempted to have sexual intercourse and she resisted. The encounter ended when the condom slipped off. Juan G. left the room at that time. The minor then reentered the bedroom. He again began to kiss her, rolled over on top of her and inserted his penis into her vagina. The minor then rolled over so that the victim was on top of him. The victim tried to pull away, but the minor held onto her hips. Finally, the minor let her go and the victim went home.
Issue. Did the victim properly withdraw her consent to sexual intercourse?
Held. Yes. “[F]orcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury, and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it.” Even though the minor claimed that, at best, the evidence shows that the victim initially consented and then withdrew her consent, the minor still committed rape. Withdrawal of consent can be done at any time.
Discussion. The lack of consent will always constitute rape, even if the sexual intercourse is initially consented to, but the consent is withdrawn during intercourse. The sexual intercourse must stop immediately when the consent is withdrawn.