Initial Consent to Sexual Intercourse Before Rape Case Law
In State v. Robinson (Me. 1985) 496 A.2d 1067 the jury also questioned whether initial consent to sexual intercourse forecloses a finding of rape.
The court held that the trial court correctly instructed the jury that a rape is committed if the sexual intercourse is continued only as a result of compulsion. ( Id. at p. 1070.)
The court noted that "The dramatic change from the role of a voluntary participant to that of a victim compelled involuntarily to submit to the sexual intercourse is a distinct one." ( Robinson, supra, at p. 1071.)
When a victim is forced to submit to continued intercourse for a period after she has revoked her original consent, the crime of rape is committed. (Ibid.)
The Robinson court states the better view. We therefore decline to follow Vela. the Vela court focussed on "the moment of penetration as the crucial moment of the crime of rape." (People v. Vela, supra, 172 Cal. App. 3d at p. 242.)
While it is true that any penetration, however slight, is sufficient to complete the crime of rape ( 263), that was not the question presented in Vela nor is it the issue presented here.
Although the Vela court acknowledged that rape is "nonconsensual sexual intercourse," citing People v. Key (1984) 153 Cal. App. 3d 888, 895 [203 Cal. Rptr. 144]), it failed to apply the statutory language of section 261 to the factual scenario presented.
Section 261, subdivision (a)(2) defines rape as sexual intercourse that is accomplished against a person's will. Under section 261, a rape is necessarily committed if a victim is forced to continue with sexual intercourse against her will.