When Is Consented Sexual Intercourse Actually a Rape?
Rape does not seem on the surface to be a very confusing or hard to understand crime. It is using force, threats or intimidation to achieve sexual intercourse with an unwilling victim. Well, it used to be simple to understand, until the California Court of Appeal made it more complicated. Every male who is dating women needs to be aware of the case of People v. Roundtree, (First District 2000) 77 Cal. App.4th 846, at 851. The rationale of the opinion seems on its surface to be a sensible interpretation of past law applied to a new situation, but the implications of the decision inspire "shock and awe."
The Case of People v. Roundtree In A Nutshell
Here is the Roundtree decision's ruling in a nutshell: "When a victim is forced to submit to continued intercourse for a period after she has revoked her original consent, the crime of rape is committed."
Have Sex For A "Period of Time", Go to Prison For A "Period of Time".
In case you missed it, the key words in this Court's decision are "for a period." Here is the scenario at issue: A woman agrees to have intercourse with a man. He penetrates her and commences intercourse. After penetration, she has second thoughts and revokes consent. The ruling makes the man a rapist if the intercourse continues "for a period". The Court was not kind enough to define "a period." For 99.9% of people, intercourse occurs with only two people present: the participants. So how fast must a man comprehend that consent has been revoked and withdraw (amid arousal, being close to climax, and shortness of breath, and heart pounding) in order to fulfill the court's requirement that intercourse not continue for "a period?" The only one who knows is guess who: the woman.
Roundtree vs. The REAL World
Now let's do something which the First District evidently did not do: stop a minute and conceive of how this would play out in real life. Isn't it clear that any woman who would change her mind about having sex in the middle of having sex has already started to feel "violated?" If she subjectively suddenly feels raped, then could any haste in withdrawing be fast enough for her? Let's face some facts here. It is so clear as to be beyond dispute that men and women think differently, because their brains are actually different. Hence, miscommunication between them is the norm, not the exception.
"Please Stop!" "Stop What?"
So let's think of what the logical reaction would be from a man who found himself in the middle of intercourse and hears the word "stop." (Assuming of course, that he clearly hears her; she is not whispering; his panting does not mask her word; and that her verbalization is clear, despite her own heavy breathing). Is he more likely to assume that she just changed her mind about having sex while having sex, or instead, that his wrist watch has caught her hair and hurt her; or that his finger nails scratched her; or that she wants to try a different position to finish; or that she simply wants to delay orgasm?
The Sole Judge of This Rape Is The Accuser
Could anything be less clear on the instant than that she happily commenced to make love to her boyfriend and then suddenly decided he was violating her? Is it so hard to imagine that his initial reaction would be confusion? What if he freezes and asks "What?" Is that confused pause "a period" of intercourse that makes him a rapist? Answer: YES. Because since she already feels raped, any delay is too much delay. Remember, since she called the police (or we would not have a court case), she obviously feels the delay was too much. No doubt the Court was aiming at the situation where a woman clearly expresses her desire to stop and he slaps her, holds her down, threatens her, or otherwise forces her to continue. But that is not what they said. The above quoted language states that the "rape" is complete if the intercourse continues "for a period" after consent is revoked. What does "forced to continue" mean? Is laying on top of her "force"? Is continuing to stroke "force"? Probably.
Game Playing In Male-Female Assault Cases
Perhaps the Court is unaware of the epidemic of false complaints of domestic violence and sexual assaults. Perhaps not practicing law anymore has insulated our judges and justices from seeing the parade of gamesmanship that has entered the male-female criminal justice milieu. Since in California it is now required for Family court judges to consider domestic violence, criminal acts, and restraining orders in deciding child custody, a pre-emptive 911 call before filing a divorce action has become almost routine.
Five Reasons This Case Can Contribute To False Accusations
A false accusation is also a great way to 1) make money on a civil suit; 2) even the score if the spouse/boyfriend/girlfriend cheats on you; 3) vent your anger for being jilted; 4) even the score for the other having had you arrested previously or having gotten a restraining order against you; and of course 5) there is just plain old mental illness which causes all kinds of erratic behavior.
Maliciously Gaming The System
Only yesterday, I got a case inquiry from a man who had gotten a restraining order against a woman for stalking him. She waited until the order expired and went to visit him. She picked a fight with him, injured herself, called 911, had him arrested and a restraining order put on him. Is it possible that our appellate courts are unaware of the extent to which the criminal justice system is subject to these "games"? If they are aware, how could they put such raw, naked power in to the hands of someone so emotionally unstable that they don't know whether they want to have sex or not? Does it not occur to them that this case ruling is an open invitation to maliciously motivated people to invite sexual intercourse and then stage a "rape" by suddenly revoking consent? And finally, which is more likely to occur: that a woman genuinely changes her mind in mid-stroke, or that she is setting him up?
Be Afraid. Be VERY Afraid.
If you are a male who is dating, be very aware of this law. If you have sons, make them aware. This case leans toward effectuating the rule a female Public Defender once cynically suggested to me when she learned of this opinion: "Why don't we just put all males on probation at birth and get it over with?"