17-year-old victim, her boyfriend, and D were all at a party. Victim and D went to D's dark bedroom. D tried to convince victim to be his girlfriend.
Victim's boyfriend entered the room and the boys asked if she ever thought about having a threesome. Victim did not leave and the threesome commenced.
D left the room at one point and victim and her boyfriend had sex. The boyfriend then left and D came in the room.
D and victim kissed and then had sex. After a few minutes, victim said that she needed to go home. D said to wait a minute.
Victim became more urgent in her requests to go home, but D continued in making her stay.
Procedural History:
Trial court found D guilty of forcible rape.
CA Supreme Court affirmed.
Issues:
Is the crime of forcible rape committed when the victim consents to an initial penetration and then withdraws her consent during the act of intercourse but the D continues against her will?
Holding/Rule:
The offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the D forcibly continues despite the objection.
Reasoning:
In this case, victim initially consented but then withdrew her consent and, through her actions and words, communicated that fact to D.
Nothing in the language of the statute suggests that the D is entitled to persist in intercourse once the victim has withdrawn consent.
D continued the sex for at least 4 or 5 minutes after victim first told him she had to go home.
After the third time, D continued to insist that he needed more time and forced it on victim for a minute or two.
Dissent:
It is not clear that victim was forcibly compelled to continue after the consent was withdrawn.
How soon must a D desist after consent is withdrawn?
Is persistence the same as force? The trial court should answer these questions.
