Metropolitan News-Enterprise


Tuesday, January 7, 2003


Page 1


Withdrawn Consent Is Not a Defense to Forcible Rape, S.C. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


Consent is not a defense to a charge of forcible rape if the accused persists following the withdrawal of that consent, the California Supreme Court ruled yesterday.

In a 6-1 decision, with Justice Janice Rogers Brown the lone dissenter, the justices affirmed lower court rulings committing a juvenile offender from El Dorado County, identified as John Z., to Crystal Creek Boys Ranch.

The complainant, Laura T., was 17 years old at the time of the March 2000 incident. She acknowledged that she willingly visited John at his house and allowed John and his friend Juan G. to take off her clothes and fondle her.

But she became upset, she said, when Juan got on top of her and tried to have intercourse. When his condom fell off, she said, she told him “maybe it’s a sign we shouldn’t be doing this,” and he said “fine” and left the room.

After that, she testified, John came in and told her he really cared about her and Juan didn’t. John told her she was “really beautiful,” and that he wanted her to be his girlfriend. They kissed, she said, before he rolled on top of her and began to attempt intercourse.

Laura said she tried to get him to stop, insisting several times that she had to go home, but that John “just stayed inside of me and kept like basically forcing it on me.” He persisted, she said, for several minutes, saying “just give me a minute” and “give me some time” before heeding her pleas to stop.

Consent Claimed

John claimed that all of the activity was consensual. He and Juan were initially both charged with forcible rape, but Juan reached a mid-hearing plea agreement and admitted to lesser charges of sexual battery and misdemeanor unlawful intercourse with a minor whose age is within three years of the perpetrator’s.

El Dorado Superior Court Judge Thomas Smith found John to have committed forcible rape and sent him to the boys ranch after finding that a disposition for a prior offense had been ineffective. The Third District Court of Appeal affirmed.

Chin, writing for the high court, rejected the arguments of John’s court-appointed Sacramento attorney, Carol Foster, that her client was not guilty of forcible rape, even if Laura withdrew her consent as she claimed. A male, Foster argued, must be given a “reasonable amount of time” in which to withdraw after the female objects.

“By essence of the act of sexual intercourse, a male’s primal urge to reproduce is aroused,” Foster argued. “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.”

Force or Violence

Chin, however, said the argument is inconsistent with the language of Penal Code Sec. 261(a)(2), which defines as rape a sexual act “accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”

The justice said there was substantial evidence that Laura unequivocally withdrew any consent she might have given. Chin concluded that “no reasonable person in defendant’s position would have believed that Laura continued to consent to the act.”

Brown, dissenting, agreed with her colleagues that “the clear withdrawal of consent nullifies any earlier consent and forcible persistence in what then becomes nonconsensual intercourse is rape.” But Laura’s withdrawal of consent was ambiguous and John may have “misinterpreted” her “silent and ineffectual movements” and understood her words “as requests for reassurance or demands for speed.”

Chin, however, wrote that John’s use of force in response to Laura’s pleas was “clearly ample to satisfy” the statute. And he noted that since this was a juvenile adjudication, there were no jury instructions to review and the court did not need to consider how a judge should instruct a jury on “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.”

Deputy Attorney General John G. McLean argued for the state. Douglas E. Beloof, a Portland, Ore. lawyer for the National Crime Victim Law Institute as amicus, also argued for affirmance.

The case is In re John Z., 03 S.O.S. 83.


Copyright 2003, Metropolitan News Company