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When a woman says no to sex, even after intercourse has begun, a man had better pay attention. On Monday, the California Supreme Court ruled 6-1 that it’s rape if a man continues to have sex with a woman who originally consented but then changed her mind. “We conclude,” Justice Ming Chin wrote for the majority, “that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.” In what she called a “sordid, distressing, sad little case,” Justice Janice Rogers Brown dissented, saying the majority provided no guidance about what constitutes withdrawal of consent and what amount of force turns consensual sex into rape. “The majority relies heavily on [the defendant's] failure to desist immediately,” she wrote. “But it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?” The case, out of El Dorado County, involved a March 2000 party at which 17-year-old Laura T. reluctantly engaged in sex with a minor identified only as John Z. The young woman claimed that John Z. had continued to have sex with her after she repeatedly asked him to stop. “Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home,” Justice Chin wrote. “According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and ‘just stayed inside of me and kept like basically forcing it on me’ for about a ‘minute, minute and [a] half.’” The high court’s ruling upholds Sacramento’s Third District Court of Appeal, and resolves a split in the law created by two competing appeal court rulings — People v. Roundtree, 77 Cal.App.4th 846, and People v. Vela, 172 Cal.App.3d 237. Monday’s opinion sides with Roundtree, a 2000 ruling by San Francisco’s First District that said withdrawal of consent effectively nullifies any earlier consent, while disavowing Vela, a 1985 ruling by Fresno’s Fifth District that ruled the opposite. In her dissent, Justice Brown accused the majority of ignoring “critical questions about the nature and sufficiency of proof in a post-penetration rape case” and argued that prosecutors should still have the burden of proving beyond a reasonable doubt that a victim clearly communicated withdrawal of consent, and the perpetrator exercised some degree of force. She noted that the victim in John Z. had enjoyed the sex, had simply said she had to go and had never overtly told John Z. she didn’t want to keep having sex. “The majority finds Laura’s ‘actions and words’ clearly communicated withdrawal of consent in a fashion ‘no reasonable person in defendant’s position’ could have mistaken,” Brown wrote. “But Laura’s silent and ineffectual movements could easily be misinterpreted. And none of her statements are unequivocal.” Sacramento solo practitioner Carol Foster, who represented John Z., could not be reached for comment Monday. Neither could Douglas Beloof, who argued part of the state’s case before the Supreme Court on behalf of the National Crime Victim Law Institute, an amicus curiae based in Portland, Ore. However, Sacramento-based Deputy Attorney General John McLean, who also argued before the court, called the decision “a common sense ruling” that did away with a “minority view opinion” from the mid ’80s. He also said that despite Brown’s dissent he thought the ruling was “pretty clear.” “There may be a need later on,” he added, “for instructions to deal with specific situations.” The case is In re John Z, 03 C.D.O.S. 129.

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