Confusion Over Consent

Her name was Laura. She met a boy at a bus stop, became his “sort of” girlfriend for a couple weeks, and agreed to drive him to a party at his friend’s house and come back later to pick him up. But she stayed, and he raped her.

There was no doubt it was rape. Laura never agreed to have sex with the teenager, Juan, and struggled with him as he pushed her back on the bed in his friend’s bedroom and climbed on top of her. After Juan left the room, another teen came in. His name was John Z. It was his house and his bedroom. Laura, still on his bed, undressed, in the dark, did agree, wordlessly, to have sex with him.

John Z., not Juan, was convicted of forcible rape. (Juan cut a deal with prosecutors and pleaded guilty to two misdemeanors.) John Z.’s appeal generated a California Supreme Court ruling that made clear for the first time in this state that once you begin having sex you are allowed to change your mind. Consent to sex can be withdrawn in the middle of the act, the court ruled, and anyone who forces his partner to continue after that point is a rapist. The old case law — that consent only had to exist at the moment of penetration — was thrown out. “No” means “no,” whenever it is uttered.

In re John Z., a case that began in juvenile court in El Dorado County, created headlines around the country when the court issued its opinion on January 6, and became the subject of radio talk shows and TV interviews coast to coast. Would wily women now utter a barely audible “no” in the middle of intercourse to trap men into becoming rapists? Must men now forgo the mental abandon of sex and remain watchful for any clue that hints at revoked consent?

But the troublesome aspect of the case for most people wasn’t the statement that there can be, in the legal terminology, “post-penetration rape.” The trouble came instead from a careful reading of the facts as they were recited by the court. Did Laura ever really ask John Z. to stop? It depends on which facts you pick and how you recite them. It is not as clear as the 6-1 court majority might believe.

Janice Rogers Brown, the conservative African-American justice who faces a possible Senate filibuster on her nomination to a lifetime spot on a federal appeals court, saw the same case as her six colleagues and reached the same decision — that a person has the absolute right to call a halt to sex. “[I]f she is compelled to continue,” Brown said, “a forcible rape is committed.” But that’s where the agreement ends. Brown said there was no rape here, or at least not enough evidence of one for a criminal conviction. Her dissent has outraged activists, who have sent hundreds of letters to the Senate Judiciary Committee objecting to her confirmation.

Here’s how she tells the story of what she calls a “sordid, distressing, sad little case.”

The “party” is really just four guys, 16 to 21, drinking at

a house. And Laura. Brown makes a point of noting that she came to the house in her own car. When she was ready to go and was walking to the door, John Z. asked if he could talk to her, so she went back inside and into his unlit bedroom.

“She did not ask to turn on the light,” Brown points out.

“She entered the room willingly and was not restrained

from leaving.”

Then Juan came in, and Laura “continued to sit on the bed in John’s darkened bedroom with both Juan and John while one or both of them removed various items of her clothing,” Brown writes.

Asked why she didn’t leave, Laura testified: “There is no reason. I just didn’t. I didn’t think about it. I had already tried to leave once, and they asked me to go in the bedroom and talk.”

Brown does not then describe Juan’s rape, but simply notes that it ended when his condom fell off. Juan left the room and John Z. returned, sitting on the bed behind her and touching her with one hand on her shoulder. “John began kissing her. She kissed him back. He climbed on top of her and achieved penetration. She did not say anything. She did not push him away, slap him or strike him. He made no threats and he did not hurt her. John asked her repeatedly, ‘Will you be my girlfriend?’ He rolled over so she was on top. She remained in that position for four to five minutes. Although he held her only with one hand on her waist — not hard enough for her to feel the pressure or to create a bruise — she was unable to extricate herself or break the connection. There was no conversation when intercourse began, and she said nothing while she was on top of him.”

But they rolled over again and Laura said, “I should be going now.” John replied, “Just give me a minute.” Several minutes passed. “I need to get home,” she said. “Give me some time,” he said. And then she responded: “No. I have to go home.”

There it is. “No.”

But did this “no” mean “stop”? Brown says that under the circumstances of the “sad little case” it could just as easily have meant “hurry up.” Laura’s “silent and ineffectual movements could easily be misinterpreted,” Brown said, and “none of her statements are unequivocal.” The dissenting justice notes that when Laura was asked on the stand why she said she wanted to go home, she didn’t testify that it was because she wanted to stop, but because she didn’t want her mother to suspect anything.

Was this enough to convict John Z. of rape? Brown says no. The implication of this conservative Republican’s dissent, while never explicit, is that the court’s majority buy into an old-fashioned notion of helpless girls and women. Brown seems disgusted at Laura, or at least disappointed, for assuming such a passive role.


In the majority opinion, Justice Ming W. Chin makes a point of describing Juan’s rape. Should it matter to a jury, when considering Laura’s and John’s state of mind, that she had just been raped? Perhaps. This case, though, was tried in juvenile court, where there is no jury.

Chin also described Laura’s sex with John differently, selecting different facts from the record. “He rolled on top of her,” Chin writes, “inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him . . . she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop.” Chin quoted Laura testifying that John “just stayed inside me and kept like basically forcing it on me.”

The two versions of the story don’t vary, perhaps, as much as something out of Rashomon. But they vary enough to make the difference between a first-strike felony and a misdemeanor.

Did Laura, having just been raped by John Z.’s friend, really consent? Did she really revoke consent later, or was she just seeking some reassurance from John? Or telling him to hurry up? Callers into the radio shows said Laura was only engaging in courtship, under the ever-shifting rules of the game. Others claimed she decided only later that the encounter didn’t go well for her, and that she would view it as a rape.

But for the court’s majority, it was clear. Laura said she wanted to go home, John Z. asked for more time, and Laura did all she had to do. She said “no.”

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