No Means No?: Withdrawal of Consent During Intercourse and the Continuing Evolution of the Definition of Rape

• NCJ Number: 208930
• Journal: Journal of Criminal Law and Criminology Volume: 95 Issue: 1 Dated: Fall 2004 Pages: 277-314
• Author(s): Matthew R. Lyon
• Date Published: 2004
• Length: 38 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article argues that the California and Illinois rape laws, which redefine "nonconsent" in sexual assault cases to include situations in which consent is withdrawn after penetration, are important steps in protecting the rights of sexual assault victims.

Abstract

Section I of the article describes the evolution of the definition of rape over the past 25 years, with reforms bringing the termination of the marital rape exemption and an increased emphasis on nonconsent of the victim; the latter trend has resulted in the removal of the force requirement as an element of sexual assault in some jurisdictions. Section II reviews the current state of the law in cases where consent is initially given and then withdrawn. Some State court decision in the 1980's reinforced the common-law rule that if consent is given initially, the act cannot be considered rape, even if consent is withdrawn in the course of the act. In contrast, several recent State court decisions have broadened the definition of rape to include situations where consent is initially given but subsequently withdrawn by the victim. Section III compares these two differing statutory definitions of rape. Section IV notes some of the criticisms of the expansion of the rape definition in California, Illinois, and other jurisdictions. The main criticisms are that it is impossible to define a reasonable amount of time for the partner to stop the act after consent is withdrawn; it victimizes men; and it trivializes the harm done to women who are victims of "actual" rapes. Another criticism is made by reform advocates when they claim that such laws minimize the rights of rape victims by transforming them from constitutional rights to statutory rights. This article argues that rape statutes should protect all victims of nonconsensual intercourse, regardless of when the decision not to have intercourse is stated.