Not as she does

Posted: Jan 14, 2003 12:00 AM
We know "no" means "no." Now, according to the state Supreme Court, "I should be going now" means "no," too. So California's big bench ruled 6-to-1 in a decision that found a man is a rapist if he continues to have intercourse with someone who initially consented to sex, but then changed her mind. The dissenting justice, Janice Brown, agreed with the gist of the ruling, but not with the result. "The facts in this case, as described solely by the prosecution witness, create doubt both about the withdrawal of consent and the use of force," she wrote. Here's Brown's point: 17-year-old Laura didn't quite say no. Laura testified that in March 2000 she told Juan and his friend John Z. -- a minor whose case was the subject of this appeal -- that she didn't want to have sex with them. Then the three engaged in heated foreplay to the point of undress. Laura testified that she enjoyed it. When asked why she didn't leave, she said: "There is no reason. I just didn't." Later, Juan had intercourse with Laura but stopped after his condom kept coming off and Laura said that was a sign they "shouldn't be doing this." Juan left. John re-entered the room and initiated intercourse. Laura "did not say anything. She did not push him away," Brown noted. Laura testified that John rolled over so that she was on top for four to five minutes, but that he had forced her to continue by grabbing her waist -- with one hand. The other was in a cast. When no longer on top, Laura told John that if he cared for her, he would have waited. After a bit, she testified, she said, "I should be going now." Then, she said: "I need to go home." Laura admitted under oath that she "never officially" told John to stop. As Brown wrote: "Laura's silent and ineffectual movements could easily be misinterpreted. And, none of her statements is unequivocal." Deputy Attorney General John McLean believes the prosecution had a solid case; Laura never consented to intercourse. Supporting that view is Laura's testimony that after the act, John Z. told her, "I didn't rape you so you cannot call the cops." His lawyer, Carol Foster, says John Z. denies that he said this. But Laura's testimony seems, if anything, painfully honest. John Z. is out of prison now. Foster tells me he served less than six months in a detention camp. But the ruling on his case is now law. The law now says that women and girls can behave as they choose, but they're not responsible for the response they evoke, as long as they say "no." Or, "If you cared about me, you'd wait." Men and boys are responsible for how they behave. "Why didn't she just get out of there?" attorney Foster asked, noting that Laura's behavior contradicted her rhetoric. How was John Z. supposed to know if she was opposed to sex, or simply passive? The worst of this is that girls now believe in this fairytale world without consequences. In more than one sense, Laura is a victim here. She thought she could go to a party and be the only girl with four boys drinking beer, that she could get naked with two of the boys, and that all she had to do was -- not shout, not leave -- but just say no, and they'd simply stop. We're telling girls that if they throw out sexual-harassment seminar soundbites -- like, if you respected me, you'd wait -- boys will heel, even during the act. This is not realistic. Brown asks if, when consent is withdrawn during the sexual act, the penalty should "be the same as for forcible rape? Such questions seem inextricably tied to the question of whether a reasonable person would know that the statement, 'I need to go home,' should be interpreted as a demand to stop." You have to wonder where justice is when courts decide that women's actions can contradict their words and that doesn't constitute reasonable doubt -- except to Janice Brown.