Can't Rape the Willin'

That's a phrase I heard a time or two when I was practicing criminal defense law, always from a certain kind of man who thought he was more clever than he really was and tended to have illusions about his desirability to women. I was more than a little surprised to hear the same sort of sentiment voiced by a woman--and a woman judge, at that.

Pennsylvania law defines rape, in relevant part, this way:

A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant:

1. By forcible compulsion
2. By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution...

In simple terms, by force or threat of force.

Earlier this month, Philadelphia Municipal Court Judge Teresa Carr Deni dismissed all sex and assault charges against a man accused of coercing sex from a woman at gunpoint. A few of his friends joined in as well.

At the preliminary hearing, the Judge's job isn't to make determinations of fact, and that's not what Judge Deni did. Rather, she made a determination that even if the woman's account was accurate, the crime the men committed wasn't rape. The reason? The victim was a prostitute. As such, the judge apparently reasoned, the woman had consented to sex. The men's only crime was failing to pay her. In a legal twist worthy of David Lynch, the judge ordered the defendant held on armed robbery charges for theft of services.

Of course, had the defendant PAID for the services, he'd have been committing a crime as well...

Now, it appears (because, of course, there are only a few people who actually know exactly what happened) that the woman did agree to some kind of sexual encounter for a price. But then something happened to change the agreement. The something was that the defendant produced a GUN.

I don't know about you all, but I get a little nervous when I'm in an abandoned building with someone and he produces a gun. Well, I've actually never experienced that precise scenario, but I feel pretty confident in assuming that it would leave me feeling less than amorous. It might even leave me feeling like I needed to get the heck out of there, and whatever business deal we might previously have negotiated was OFF.

The judge's reasoning was that the woman had consented and not gotten paid. That, in her book, looked like robbery. There's an odd kind of logic to it, until you stop and think about the limits of consent. Because what this judge has effectively ruled is that consent, once given, CANNOT BE WITHDRAWN.

Sit up and take notice, moms and dads of high school and college girls, because the legal ruling here wasn't based--at least, not on paper--on the fact that this woman was a prostitute. It was based on the fact that she'd consented. And, it seems, that consent was indelible in the judge's mind. She'd made her bargain. She wasn't allowed to get cold feet. She wasn't allowed to rethink what she was doing. She wasn't allowed to withdraw her consent--not even when the gentleman in question pointed a gun at her.

That's not a precedent I want young women in this country to have to live with...no matter how they make their livings.