California, United States of America
The following excerpt is from The PEOPLE V. FUERTE, G042922, No. 07WF2829 (Cal. App. 2010):
This argument does not persuade. The evidence shows the victim repeatedly told defendant to stop, both when he pulled her pants down and when he penetrated her, and tried to get away from him. The fact she stopped struggling at some point makes no difference. A rape victim need not resist. (People v. Griffin, supra, 33 Cal.4th at p. 1024-1025.) Even if he was "less than sophisticated or educated" as he seems to suggest, and believed the victim consented, the evidence of the victim's lack of consent confirms this was not a reasonable belief. That the victim did not act traumatized after the rape has no bearing on whether defendant believed she consented.
Defendant also relies on the lack of evidence of physical harm to the victim or that he used "restraint during the sex act." This, he argues, shows he did not use force. But, "[i]n a forcible rape prosecution, the kind of force necessary need not be substantially different or greater than the physical force normally inherent in an act of consensual sexual intercourse: 'To the contrary, it has long been recognized that "in order to establish force within the meaning of section 261..., the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]." [Citation.]' [Citation.]" (People v. Mejia (2007) 155 Cal.App.4th 86, 99-100.) "'"The kind of physical force is immaterial;... it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.'"' [Citations.]" (People v. Griffin, supra, 33 Cal.4th at p. 1024.) Defendant did use force. He pushed the victim against a wall and, when she fell down trying to get away, he pulled up her by her armpits and then penetrated her.
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