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25-1-151-Bohn-Pdfa.Pdf (1.911Mb) Yes, Then No, Means No: Current Issues, Trends, and Problems in Post-Penetration Rape TABLE OF CONTENTS IN TROD UCTION ................................................................................. 15 1 1. POST-PENETRATION RAPE IN THE JUDICIARY: IN RE JOHN Z. AND SUBSEQUENT CASE LAW .................................................................. 153 A. BACKGROUND OF POST-PENETRATION RAPE ........................... 154 B . FA C T S ...................................................................................... 15 5 C. THE COURT'S ANALYSIS AND HOLDING: VELA OVERTURNED AND ROUNDTREE UPHELD ................................................................157 D. THE LONE DISSENTER, JUSTICE BROWN ................................. 160 E. IN THE WAKE OF JOHN Z: KANSAS FOLLOWS SUIT .................... 160 HI. POST-PENETRATION RAPE IN THE LEGISLATURE: THE ILLINOIS STATUTE AND ARGUMENTS IN FAVOR OF AND AGAINST RECOGNITION OF POST-PENETRATION RAPE AS A RAPE ................. 164 A. THE AMENDED ILLINOIS CRIMINAL SEXUAL ASSAULT STATUTE ................................................................................ 164 B. JUROR CONFUSION IN POST-PENETRATION RAPE CASES AND THE LEGISLATIVE SOLUTION ........................................................... 165 C. ARGUMENTS IN FAVOR OF AND AGAINST POST-PENETRATION RAPE AS A RAPE AND LEGISLATIVE OPTIONS FOR RECOGN ITIO N ........................................................................... 168 Il. PROBLEMS OF PROOF IN POST-PENETRATION RAPE CASES ............ 173 A. "HE SAID, SHE SAID" ............................................................... 173 B. RAPE TRAUMA SYNDROME (RTS) ............................................. 175 C. INTERACTION WITH RAPE SHIELD STATUTES ........................... 177 D. SEXUAL CONSENT FORM S ......................................................... 180 C O NCLU SIO N .................................................................................... 182 INTRODUCTION The new revision to the Illinois criminal sexual assault statute' attempts to give an answer to the often asked question among jurors in 1. 720 ILL. COMP. STAT. 5/12-17 (2002), amended by Act of July 25, 2003, P.A. 93-389, § 5. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 25 criminal sexual assault cases: "Once penetration has occurred with the female's consent, if the female changes her mind does force from that point '2 (where she changes her mind) constitute rape?" Several courts in various jurisdictions have been presented with this question during trials and appeals of convictions for rape and criminal sexual assault. Those courts that have granted review of cases involving this issue have handed down polarized opinions. A major split among circuits has resulted over the past several decades on the issue of what has been termed as "post-penetration rape.",3 The post-penetration rape issue is the most recent in a long history of issues which have arisen from rape cases. Other issues have included the definition of force, the validity of marital rape and acquaintance rape, 4 varying degrees of rape, and rape shield statutes, among others. This comment stands for the proposition that, due to the perpetual confusion among jurors at trial and courts that try cases involving post- penetration rape, the state legislatures are in the best position to clarify individual state stances on post-penetration rape as a viable rape with the Illinois criminal sexual assault statute serving as a model for this recognition. Additionally, for those state legislatures that choose to adopt a stance on post-penetration rape as a viable rape, this comment discusses the various options legislatures can use to address this issue and create clarity among jurors and courts. Finally, this comment addresses problems of proof that could attach when a legislature chooses to recognize post- penetration rape as a rape, and possible solutions to those potential proof problems so that legislatures will not be discouraged from enacting post- penetration rape laws. Part I of this comment dissects the recent California Supreme Court case, In re John Z.,5 upon which the amendment to the Illinois criminal sexual assault statute is based. It will examine the two lines of cases that 6 served as precedent in the California courts, and the holding of John Z.: the recent judicial stance that favors upholding post-penetration rape as a 7 rape and points out the flaws in the Vela line of reasoning. Finally, Part I 2. People v. Vela, 218 Cal. Rptr. 161, 162 (Cal. Ct. App. 1985) (although this jury posed the question in terms of a female victim, the Illinois statute is gender-neutral). 3. Amy McClellan, Comment, Post-PenetrationRape-Increasing the Penalty, 31 SANTA CLARA L. REv. 779, 780 (1991). 4. In re John Z., 60 P.3d 183, 188 (Cal. 2003). 5. In re John Z., 60 P.3d 183 (Cal. 2003). 6. See People v. Vela, 218 Cal. Rptr. 161 (Cal. Ct. App. 1985); People v. Roundtree, 91 Cal. Rptr. 921 (Cal. Ct. App. 2000). 7. In re John Z., 60 P.3d at 185. 2004l ISSUES IN POST-PENETRATION RAPE examines a recent case in the8 Kansas Court of Appeals, the first court to apply the decision in John Z Part II examines the extent of the impact of the decision from In re John Z. on the legislative revisions to the Illinois criminal code.9 It will examine the precise amendment to the statute in the wake of John Z. as an exception to the defense of consent ° and also offer alternative means of incorporating the John Z. holding into legislation, including the option to have varying degrees of rape" or to make lack of consent an element of 2 rape.' This comment will also touch on the potential pro and con arguments regarding the new Illinois revisions, list the safeguards for defendants against false accusations, and argue that legislatures are in the best position to clarify the elements of rape as well as the exceptions to affirmative defenses. Finally, Part III explores the ramifications of a state's decision to recognize post-penetration rape as a rape. This includes a commentary on the viable use of direct victim testimony as well as Rape Trauma Syndrome testimony by expert witnesses as viable evidence of post-penetration rape, 13 the interaction between post-penetration rape statutes and rape shield statutes, as well as the emerging use of sexual consent forms to avoid accusations of rape in both criminal and civil cases in light of the rape case against basketball star Kobe Bryant.14 I. POST-PENETRATION RAPE IN THE JUDICIARY: IN RE JOHN Z. AND SUBSEQUENT CASE LAW In January of 2003, the California Supreme Court handed down a decision, In re John Z.:15 the first instance in which a state supreme court officially recognized post-penetration rape as a form of rape. The court attempted to resolve the question of "whether the crime of forcible rape is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of 8. State v. Bunyard, 75 P.3d 750 (Kan. Ct. App. 2003). 9. 720 ILL. COMP. STAT. 5/12-17 (2002), amended by Act of July 25, 2003, P.A. 93-389, § 5. 10. Id. 11. McClellan, supra note 3, at 805. 12. Parks v. State, 526 S.E.2d 893, at 895 (Ga. Ct. App. 1999). 13. Id. 14. Ava Cadell, Kobe Bryant and Sex Consent Form, available at http://www.avacadell.com/ava/articles/a992.html (last visited Oct. 2, 2004). 15. InreJohnZ.,60P.3dat 184. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 25 intercourse, but the male continues against her will.' 6 This situation has been termed as post-penetration rape because it applies only to the limited situation where penetration has been initially consented to and then the consent is withdrawn, yet the penetration is continued against the will of the victim.' 7 The case settled a long-term dispute over the viability of post- penetration rape as a punishable rape between two different appellate courts in California, yet still left some questions unanswered. 18 After the decision in In re John Z., other states have adopted California's logic, either in their case law jurisprudence' 9 or in amending prior criminal re John Z 20 statutes to reflect an acknowledgement of the decision in In A. BACKGROUND OF POST-PENETRATION RAPE Amy McClellan, as a student at Santa Clara Law School, was the first known author to coin the term "post-penetration rape.",2' She used the term to describe the legally significant phenomenon of a female who initially consents to intercourse with the defendant and then later during the intercourse, for whatever reason, makes it known to the defendant that she to cease. 2 has changed her mind and that she wants the intercourse McClellan argued that such conditions required an increase from their then recognition as a mere assault or battery to a full-fledged crime of rape.23 McClellan summarized the changes in recent history to rape laws to include marital rape and acquaintance rape and argued that post-penetration rape was the next potential change in the area of rape law.24 Until 2003, post-penetration rape had never been acknowledged specifically within state criminal statutes. Illinois was the first state to amend its criminal code to reflect the changing perception of post- penetration rape as a special subsection of acquaintance rape. 25 However, 16. In re John Z., 60 P.3d at 184 (citation omitted). 17. McClellan, supra note 3, at 780. 18. People v. Vela, 218 Cal. Rptr. 161 (Cal. Ct. App. 1985); People v. Roundtree, 77 91 Cal. Rptr. 921 (Cal. Ct. App. 2000). 19. See State v. Bunyard, 75 P.3d 750 (Kan. Ct. App. 2003). 20. 720 ILL. COMP. STAT. 5/12-17 (2002) (amended by Act of July 25, 2003, P.A. 93-389, §5). 21. McClellan, supra note 3, at 780. 22. Id. 23. Id. at 780-81. 24. McClellan, supra note 3, at 781-82. 25. Dave McKinney, Clarification of Rape Law Signed Quietly by Governor; Blagojevich Also Oks Non-PrescriptionSale of Syringes, CHI. SUN TIMES, July 29, 2003, at 6. 2004] ISSUES IN POST-PENETRATION RAPE courts have debated about post-penetration rape for the past three decades.
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