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Name: People v. Ireland
Case #: F057896
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/08/2010

In a prosecution for rape, evidence of the defendant’s use of a weapon not agreed to by the victim, along with an express or implied threat of harm if the victim does not cooperate, may automatically negate previously given consent to intercourse. On four separate occasions during a three-month period appellant contacted four prostitutes and negotiated for a paid sex act. During each act, he produced a large knife and held it to the woman’s neck. Appellant was convicted of four counts of rape with the use of a weapon and sentenced to 25-years-to-life for each offense. On appeal, appellant claimed that there was insufficient evidence to establish that each of the victims withdrew her initial consent. According to appellant, once the victim agreed to the sex act she was required to withdraw consent and communicate the withdrawal expressly or by implication. The court disagreed. Lack of consent is an element of rape and the lack may be inferred by defendant’s use of force or duress. Here, when appellant used the knife, in the absence of any conduct by the victim indicating that she continued to consent to the act, the previously given consent no longer existed. And, even if the victim was required to communicate a withdrawal of consent, the evidence amply demonstrated that none of the victims communicated consent to sex with a knife at her throat. Appellant also claimed that CALCRIM No. 1000 (withdrawal of consent), as given, was error because it incorrectly implied that the rules concerning withdrawal of consent applied only during the act of sexual intercourse and not before. The court agreed that the instruction may have been confusing. But because there was no evidence that the victims ever agreed to intercourse with the knife, it was clear that they had withdrawn any initially given consent. And if there was any possible error, it was harmless because the court also instructed the jury that the prosecution must prove that the victim did not consent and the appellant did not reasonably and actually believe there was consent.