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Troubling questions about rape and consent

By Cathy Young | January 20, 2003

THE WAR of the Sexes has receded into the background lately, overshadowed by other, more literal wars. But earlier this month, it came back into the news with a California case that has reignited the controversy over the definition of rape and sexual consent. The California State Supreme Court's ruling that consent may be withdrawn during sex, and that a man is guilty of rape if he doesn't stop when ''yes'' changes to ''no,'' has been hailed by some as a sign of progress and denounced by others as a sign of an antimale witchhunt.

In the past decade, a number of authors, many of them feminists critical of feminist extremism (such as Katie Roiphe, author of the 1994 book ''The Morning After: Sex, Fear and Feminism''), have voiced concerns about an ever-shifting definition of rape that was expanding to include various instances of ''bad sex.'' I have been among those critics, and I believe those concerns are valid. But the California case turns out to be more complicated - and, at least on one crucial issue, the court got it right.

My initial reaction to the story was that it smacked of political correctness run amok. According to news reports, the victim and the defendant, both 17, were having consensual sex in a bedroom during a party when the girl told the boy that she had to go home, though she never actually said ''no'' or ''stop''; he stopped about a minute and a half later. The boy, identified only as John Z. because he is a minor, was convicted of forcible rape and spent six months in a juvenile facility - over what seemed like a simple misunderstanding.

The full details of the case, however, show it in a different light. For one, there were two boys involved. According to the girl, she repeatedly told them she wasn't ready to have sex, and protested when they took off her clothes and when the other defendant, Juan G., undressed. She testified that Juan G. forced himself on her despite her verbal and physical resistance but eventually stopped due to her struggling. The girl also said that when John Z. started having sex with her, she repeatedly tried to pull away and told him that ''if he really did care about (her), he wouldn't be doing this.''

In other words, the ''consent'' may have been dubious in the first place - though both boys initially insisted that all the activity was consensual. (Juan G. later pleaded guilty to sexual battery.)

The California case highlights the difficulty of sorting out facts in ''he said/she said'' acquaintance rape cases with no physical evidence of violence. No one wants to go back to the time when rape complainants were held to requirements of corroboration and resistance that were not applied to victims of other violent crimes. But how does one assess credibility in such a case?

It's possible, after all, that the girl was willing but later felt guilty and ashamed, and was tempted to reinterpret the events to absolve herself of responsibility. Her own testimony suggests ambivalence rather than outright rejection. She did not try to leave the bedroom when they began to undress and fondle her, even though she wasn't restrained; she admitted that she enjoyed the fondling and that after Juan G. left she voluntarily lay down with John Z. and returned his kisses. Perhaps her protests were so half-hearted that the boys could have honestly misinterpreted them as coyness.

All these ambiguities led the sole dissenter on the California Supreme Court, Justice Janice Rogers Brown, to say that there was not enough evidence of guilt in this case. Justice Brown, however, agreed with her colleagues that forced sex after consent has been granted and withdrawn is still rape. And on this point, the court rightly overturned the precedent of a 1985 appellate ruling which held that if a woman wants to stop and the man forces her to continue, the ''violation of her womanhood'' that constitutes the crime of rape is lacking.

Some critics of the California decision have taken the view that once you've said ''yes,'' you lose the right to say ''no.'' But would anyone really want to argue that a man who forces a crying, struggling woman to have sex isn't committing rape because the sex started out as consensual? No less disturbing is the suggestion that a healthy red-blooded male can't control himself under the circumstances. Believe it or not, men as well as women can change their minds during sex.

The case leaves many unresolved and troubling questions about force, consent, and credibility in rape cases. But the principle that forced sex is always rape is sound.