On January 6, the California Supreme Court ruled that when a woman rescinds consent during sex, the man becomes guilty of rape if he does not stop immediately.
Last month, Illinois became the first state to enact that principle into
law. Such measures trivialize the crime of rape and encourage false accusations
that, in turn, threaten the credibility of actual rape victims.
The new law
reads, "(c) A person who initially consents to sexual penetration or sexual
conduct is not deemed to have consented to any sexual penetration or sexual
conduct that occurs after he or she withdraws consent during the course of
that sexual penetration or sexual conduct."
A woman has a right to change her mind about sex at any point in the act.
And, once that change has been clearly communicated, the man should cease
The situation is similar to inviting a guest into your home. If you unmistakably
rescind the invitation, the "guest" should stay no longer than it reasonably
takes for him to understand he is no longer welcome. And yet, if the invited
guest chooses to remain, the offense he commits is trespass, not breaking
and entering or burglary. Equally, a man who doesn't use force during invited
sex but ignores signals is not committing rape but some other, lesser offense.
The Illinois law trivializes rape by placing a woman changing her mind on
the same level as a woman who is brutally beaten into sexual submission.
It places a man who may be confused by jumbled signals on the same level
as one who holds a knife to a woman's throat in a dark alley.
As such, the law is an insult to every woman who has been forcibly raped.
It is a threat to every man who becomes momentarily lost in the sex act or
totally misreads a woman's response.
The "withdrawal of consent" standard also encourages false accusations by
making the charge hinge entirely upon a "he said/she said" scenario.
Indications of consent are often public or provable: for example, an ongoing
romantic relationship or having gone up to a man's hotel room at night. This
means third parties are able to evaluate evidence that is independent of
an accuser's truthfulness or her understanding of what happened. By contrast,
indications of withdrawn consent are rarely public or provable.
Evidence that a sex act occurred proves nothing because most sex is consensual.
It would make little sense to ask mugging victims if they had agreed to be
beaten and robbed in the street because the automatic and overwhelming presumption
is that they did not. But it makes perfect sense to ask alleged victims of
rape whether they agreed to sex because that crime is defined not by the
presence of an act but the presence of consent.
Nor is reporting distress to third parties real evidence because there is
no way to verify the cause of the upset. The woman might well be traumatized
because she withdrew her consent only to be ignored by the man. But she might
also be overcome with shame or be infuriated by the man's dismissive attitude
Why would the woman lie? The answer: for the same reasons other human beings
lie. For revenge, for profit, for attention, out of shame, out of panic ...
The motives become more complicated in highly emotional situations. And when
a misunderstanding is present, lies are not even necessary for stories to
In such a conflict, the accused is currently at a disadvantage in at least
two ways. First, the presumption of innocence is reversed. Instead of being
innocent until proven guilty, the accused has to present an affirmative defense
that proves the sex was consensual. Second, the definition and standards
of consent have been expanded to such a degree that it is a difficult claim
The issue of "withdrawn consent" will continue to play out in the spotlight
due to the upcoming trial of Kobe Bryant. For weeks to come, reporters and
commentators will speculate on exactly how much sexual contact the woman
had agreed to with Kobe, on how clearly she stated her disagreements. The
state of Colorado has no law that equates withdrawn consent with rape so
the court's verdict may not hinge upon such questions. But the public's will.
I find myself in the strange position of believing Bryant to be innocent
while hoping he is guilty. An "innocent" verdict would harden the belief
that women lie about rape and it is men who are victimized. If this belief
becomes widespread, it will harm not only women who are raped but also women
who report any violence at the hands of a man.
Rape must not be trivialized; it should remain the violent act of taking
sex through force or threat of force. Sexual contact that begins with consent
and ends as unwelcome is simply in a different category than rape. If a new
legal category or theory is required to address the situation of withdrawn
consent, then it should be created. But the brutal crime of rape should not
be diluted in the process.
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.