Jay Caruso of The Daily Rant writes critically of a new law in Illiniois, reportedly the first in the country, that provides that if one partner changes his/her mind after intercourse has begun, and the other partner doesn't stop, it's rape.

To show how such a law can be misapplied, consider this California Supreme Court ruling in January, which we think borders on the ridiculous: A 17 year old female engaged in admittedly consensual intercourse with a juvenile teenage male. During the act, the female said she wanted to go home. She didn't say "stop" or "no," only that she wanted to go home. The juvenile male was convicted of rape, and the California Supreme Court upheld it.

The dissenting justice? Janice Rogers Brown, now nominated by Bush to the D.C. Circuit Court of Appeals, and considered to be a contender for a Supreme Court vacancy. Liberals oppose her as a Clarence Thomas clone. We have criticized her, for that and other reasons. But her dissent in this rape case is the only voice of sanity:

The majority provided no guidance about what constitutes withdrawal of consent and what amount of force turns consensual sex into rape. The majority relies heavily on [the defendant's] failure to desist immediately, but it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?"

Rogers Brown argued:

...prosecutors should still have the burden of proving beyond a reasonable doubt that a victim clearly communicated withdrawal of consent, and the perpetrator exercised some degree of force.

She noted that the victim in John Z. had enjoyed the sex, had simply said she had to go and had never overtly told John Z. she didn't want to keep having sex.

We agree that as a matter of legal principle, if prosecutors prove beyond a reasonable doubt that consent was withdrawn after the act begins. and that the withdrawal was clearly and unequivocally communicated to the partner, who then forcibly continued, it's rape. But that's a tough burden for prosecutors, and that's why they rightfully are reluctant to file such charges.

But we just can't see how "I want to go home" is a clear and unequivocal "no" or "stop" or "stop now" that a teenage boy is supposed to understand means a withdrawal of consent.

Update: We edited the post as to age. The girl was 17 not 19 as we originally said, and the boy was a juvenile, not necessarily 15.