People v. Ireland

California Court of Appeal · Criminal Law

Criminal LawRapeConsentWithdrawal of ConsentSufficiency of the EvidenceJury Instructionsforcible rapePenal Code section 261(a)(2)

Facts

Each of the four victims initially agreed to exchange sex for money after appellant picked them up while they were working as prostitutes. Before intercourse, appellant produced a large knife, held it to each victim's throat or neck, and told or implied to each woman that she should cooperate and would not be hurt, whereupon each submitted out of fear and was not paid. The victims testified they did not agree to sex under those conditions, and appellant's own police interview included admissions that he used the knife on several women and that at least one said she did not want him to use it. The appeal focused on whether the earlier agreement to sex meant the prosecution had to prove a communicated withdrawal of consent after appellant introduced the knife.

Issue

When a woman initially consents to intercourse for money but the defendant then holds a knife to her throat and threatens harm if she does not cooperate, must the prosecution prove that she expressly or impliedly communicated a withdrawal of consent in order to establish forcible rape? Also, was CALCRIM No. 1000 prejudicially deficient because its withdrawal-of-consent language referred to changing one's mind during the act?

Rule

Rape under Penal Code section 261, subdivision (a)(2), requires intercourse accomplished against the person's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Consent requires positive cooperation pursuant to free will; submission induced by fear is not consent. When a defendant uses a knife and expressly or impliedly threatens harm, previously given consent no longer exists, in fact or in law, unless the victim's conduct indicates continued consent; in such circumstances, no further communication of withdrawal is required. Even if communication were required, it may be shown by words or acts reasonably indicating lack of consent.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Lena Ortiz agreed to have intercourse with Devin Cole in exchange for money. Before any penetration, Devin pressed a kitchen knife against Lena’s throat and said, "Stay still and do what I say if you want to leave unhurt," and Lena then remained quiet and submitted because she feared being cut.

If Devin is prosecuted for forcible rape, which is the strongest analysis?

Explanation. The majority rule is that consent requires positive cooperation pursuant to free will. When a defendant uses a knife and expressly or impliedly threatens harm, previously given consent no longer exists, in fact or in law, unless the victim’s conduct indicates continued consent. Submission out of fear of bodily injury is not consent, and under these facts no additional communication of withdrawal is required.