Consent2sex

We spend a lot of time litigating consent to a sexual act(s), quite frequently we are also litigating whether the accused was mistaken that the person was consenting. There is another consent issue that comes up from time to time as illustrated in United States v. Rouse. The Army Court of Criminal Appeals leads with this summary.

Consent to a sexual act may be withdrawn at any time, including after the sexual act has begun. In this case, we answer the question of when continuing a sexual act after consent is withdrawn constitutes the crime of forcible sodomy. We answer this question to decide whether appellant’s conviction for forcible sodomy is legally and factually sufficient when appellant’s sexual partner initially consented to the sexual act, but withdrew her consent during the act when appellant tried to trick her into an orgy by ambush.

Several other cases have addressed the issue of when an accused keeps going with the sex act.

1. Did he hear the “stop” or other words or actions withdrawing consent?
2. If he heard, did he stop or withdraw quickly enough?

A few years ago these two issues presented themselves in a case I was litigating. Ultimately the members had to decide if he kept going for too long after realizing the CW had wanted him to stop. I had a forensic psychologist (former police officer) testify about response times to an event or act. We were able to introduce studies and reports of response times to a startling or unexpected event. The brain first has to hear the words (or sometimes recognize the action), the brain must then process that information, and having processed the information decide on what to do, and then do it. The “process” can take seconds. On average, using police studies, it takes a trained police officer about four seconds to be (knowingly) presented a target, draw his weapon, and get off the first shot. The point here is that it can take some seconds for an accused to stop or withdraw. In the case I had, the members clearly thought 20 seconds was too long.

The Rouse court goes on to clarify the issues.

Clearly, there is an absolute right to withdraw consent to a sexual act—even in the middle of the very same sexual act—that is not subject to reasonable debate. The question before us is: at what point does continuation of a once-consensual sexual act, after consent to the act is withdrawn, become the crime of forcible sodomy? We have found no precedential military cases addressing this issue. [We have found three non-binding cases that mention this specific issue in passing. See United States v. Wilson, No. 201700098, 2018 CCA LEXIS 451, *10 (N.M. Ct. Crim. App. 20 Sep. 2018); United States v. Battles, ARMY 20140399, 2017 CCA LEXIS 380, *11 (Army Ct. Crim. App. 31 May 2017); United States v. Horne, NMCM 91 1798, 1992 CMR LEXIS 442, *2-3 (N.M.C.M.R. 13 Apr. 1992). ] As such, we see this as an issue of first impression in the military. [For an extensive review of the issue of withdrawal of consent, see Amanda O. David, Comment, Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape, 34 Stetson L. Rev. 729 (2005). Ms. David concludes, as of 2005, the following states expressly addressed the issue of “post-penetration rape:” Alaska, California, Connecticut, Kansas, Maine, Maryland, North Carolina, and South Dakota. An additional two—Minnesota and New Mexico—upheld rape convictions after procedural challenges based on the trial court refusing to instruct the jury on “post-penetration rape.” Id. at n.125. ]

In Battles, cited above, the court observed:

At trial, appellant argued “sexual intercourse does not turn off like a light switch” and “interrupting coitus is an odd thing” and does not happen right away. This court is not convinced by appellant’s argument a person cannot stop immediately when any alleged consent is affirmatively withdrawn.

Compare my comment above about response times with the Battles comment.

Regardless, Rouse is an excellent case to review the case law and litigation issues where withdrawn consent is an issue.