State v. Flynn
Annotate this CaseIn State v. Bunyard, the Supreme Court held that a defendant may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear. Bunyard held that a defendant is entitled to a “reasonable time” in which to act after consent is withdrawn and communicated to the defendant. In this case, Defendant was found guilty of rape. The court of appeals reversed the conviction. Citing Defendant’s testimony that he briefly continued the intercourse after the victim withdrew consent, the court concluded that the district court erred in failing to give a Bunyard instruction. The Supreme Court affirmed, holding (1) the Court disapproves of Bunyard’s “reasonable time to withdraw” language and its definition of “reasonable time”; (2) when a defendant is charged with rape for an offense committed before July 1, 2011 and the evidence suggests the victim initially consented but withdrew consent after penetration, the trial court must instruct the jury as to the elements of rape and give an additional instruction on withdrawn consent; and (3) the additional withdrawn consent instruction was warranted in this case, and the district court’s failure to give it was not harmless.
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