A woman has an absolute right to say “no” to an act of sexual intercourse. After intercourse has commenced, she has the absolute right to call a halt and say “no more,” and if she is compelled to continue, a forcible rape is committed. Although California’s rape statutes are gender neutral, the criminalization of more subtle forms of sexual violence reflects a new view of women as “responsible, autonomous beings who possess the right to personal, sexual, and bodily self-determination.” (Berger et al., The Dimensions of Rape Reform Legislation (1988) 22 L. & Soc’y Rev. 329, 330.) Thus, both courts and legislatures have expanded the concept of rape to include spousal rape, lesser degrees of rape, and what has been characterized as postpenetration rape. (See, e.g., McGill v. State (Alaska Ct.App. 2001) 18 P.3d 77, 84; State v. Siering (1994) 35 Conn.App. 173 [644 A.2d 958, 962-963]; State v. Robinson (Me. 1985) 496 A.2d 1067, 1070-1071; State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865.)
To the extent the majority holds the clear withdrawal of consent nullifies any earlier consent and forcible persistence in what then becomes nonconsensual intercourse is rape, not assault and battery as the Court of Appeal held in People v. Vela (1985) 172 Cal.App.3d 237, 243 [218 Cal.Rptr. 161], I concur in that portion of its reasoning. However, because the majority ignores critical questions about the nature and sufficiency of proof in a postpenetration rape case, I cannot concur in the rest of the majority opinion. The majority opinion is deficient in several respects. First, the opinion fails to consider whether the victim’s statements in this case clearly communicated her withdrawal of consent. Second, there is no attempt to define what constitutes force in this context. Finally, questions about wrongful intent are given short shrift.
The People must prove the elements of a crime beyond a reasonable doubt (Pen. Code, § 1096; U.S. Const., 14th Amend.). As relevant to this case, “Rape is an act of sexual intercourse . . . with a person not the spouse of the perpetrator” “accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (Pen. Code, § 261, subd. (a)(2).) Presumably, in a postpenetration rape case, the prosecution still has the burden of showing, beyond a reasonable doubt, that the victim clearly communicated withdrawal of consent and the defendant exercised some degree of force to continue.1 Moreover, a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 Cal.4th 354, 360 [14 Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 154-155 [125 Cal.Rptr. 745, 542 *765P.2d 1337].) To be acquitted, a defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. Thus, to convict in such a case, the People must prove the absence of such a belief beyond a reasonable doubt.
Ordinarily, these cases involve a credibility contest in which the victim tells one story, the defendant another. The trial judge in this juvenile matter relied primarily on Laura’s testimony and rejected John Z.’s testimony in its entirety. Even so, “assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant” (maj. opn., ante, at p. 762), the facts in this case, as described solely by the prosecution witness, create doubt both about the withdrawal of consent and the use of force.
This is a sordid, distressing, sad little case. From any perspective, its facts are appalling. Laura T., a 17-year-old girl, finds herself alone in a house with four young men, ranging in age from 16 to 21. One of them, Juan, is “sort of’ her boyfriend. Laura and Juan met at a bus stop near her workplace and had known each other for about two weeks when they arrived at the “party” at John Z.’s house on March 23, 2000. Laura drove to the party in her own vehicle. She planned to drop Juan off and leave. The other partygoers were unknown to Laura. John Z. was introduced to her after they arrived. Instead of leaving, Laura remained at John Z.’s house for several hours. During the evening she was openly affectionate with Juan, and sporadically engaged in some mutual kissing with John Z.—in the kitchen and later in the master bedroom when Juan was sulking in the bathroom.
This is how she described subsequent events:
Around 8:00 p.m., Laura decided she was ready to leave. Before she walked out the door, John asked if he could talk to her. She walked back into the house and went into his bedroom, which was completely dark. She did not ask to turn on the light. She entered the room willingly and was not restrained from leaving. They sat in the dark, talking. John told her Juan never cared about her, was only “using [her] and anyone else could use [her] too.” John said he really liked her; she should dump Juan and become John’s girlfriend. When Juan came into the bedroom, Laura confronted him with what John had said. He denied it. The boys asked if she had ever fantasized about having “two guys.” Laura said she had not, but she continued to sit on the bed in John’s darkened bedroom with both Juan and John while one or both of them removed various items of her clothing. At first, she tried to replace her clothing, but after pulling her bra back into place a couple of times, she made no further efforts to retrieve her clothes. Asked why she did not leave, she responded: “There is no reason. I just didn’t. I didn’t think *766about it. I had already tried to leave once, and they asked me to go in the bedroom and talk.”
Feeling there was “no point in fighting” because there was nothing she could do about it anyway, she laid back on the bed, with Juan on one side of her and John on the other. She did not say anything and she was not fighting or resisting while the rest of her clothing was removed. The boys were “fingering” her and playing with her “boobs” and kissing her and “like just trying to like keep me satisfied type of thing.” She acknowledged that she enjoyed these activities, enjoyed it “because it was like a threesome”; she was laughing and liked being the center of attention.
After that prelude and after she had intercourse with Juan, which ended when the condom kept falling off and she told him perhaps that was a sign they “shouldn’t be doing this,” we come to the facts which form the basis of John Z.’s adjudication. According to Laura, she was sitting on the bed naked when John Z. came into the room, naked or partially unclothed. She had been unable to find her clothes in the dark. John sat on the bed behind her and touched her with one hand on her shoulder. He did not pull or push her backward. He nudged her with one hand. His left hand was in a cast. She laid back down on the bed. John began kissing her. She kissed him back. He climbed on top of her and achieved penetration. She did not say anything. She did not push him away, slap him or strike him. He made no threats and he did not hurt her. John asked her repeatedly “will you be my girlfriend?”
He rolled over so she was on top. She remained in that position for four to five minutes. Although he held her only with one hand on her waist—not hard enough for her to feel the pressure or to create a bruise—she was unable to extricate herself or break the connection. There was no conversation when intercourse began and she said nothing while she was on top of him. When she found herself on the bottom again, she said: “If he really did care about me, he wouldn’t be doing this to me and if he really did want a relationship, he should wait and respect that I don’t want to do this.” John responded: “I really do care about you.” She never “officially” told him she did not want to have sexual intercourse.
Sometime later she said: “I should be going now.” “I need to go home.” John said: “Just give me a minute.” Several minutes later, she said again: “I need to get home.” He said: “[Gjive me some time.” She said: “No. I have to go home.” The third time she told him she had to go home she was a little more urgent. She never “officially” cried, but she was starting to. When asked if at anytime while having intercourse with John Z., she had told him “no,” Laura answers: “No,” and repeats her contingent statement. Calling a *767halt, her answers suggest, was entirely John Z.’s responsibility. He said he cared about her, “but he still just let it happen.”
The majority finds Laura’s “actions and words” clearly communicated withdrawal of consent in a fashion “no reasonable person in defendant’s position” could have mistaken. (Maj. opn., ante, at p. 762.) But, Laura’s silent and ineffectual movements could easily be misinterpreted. And, none of her statements are unequivocal. While Laura may have felt these words clearly conveyed her unwillingness, they could reasonably be understood as requests for reassurance or demands for speed. And, Laura’s own testimony demonstrates that is precisely how John Z. interpreted what she said. Indeed, Laura demonstrates a similar ambivalence. When asked if she had made it clear to John that she didn’t want to have sex, Laura says “I thought I had,” but she acknowledges she “never officially told him” she did not want to have sexual intercourse. When asked by the prosecutor on redirect why she told John “I got to go home,” Laura answers: “Because I had to get home so my mom wouldn’t suspect anything.”
Furthermore, even if we assume that Laura’s statements evidenced a clear intent to withdraw consent, sexual intercourse is not transformed into rape merely because a woman changes her mind. (State v. Robinson, supra, 496 A.2d at p. 1070; People v. Roundtree (2000) 77 Cal.App.4th 846, 851 [91 Cal.Rptr.2d 921].) As the majority acknowledges, by reason of Penal Code sections 261 and 263, “ ‘[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim’s will.’” (Maj. opn., ante, at p. 761, quoting Roundtree, at p. 851, italics added.) In other words, an act of sexual intercourse becomes rape under these circumstances if all the elements of rape are present. Under the facts of this case, however, it is not clear that Laura was forcibly compelled to continue. All we know is that John Z. did not instantly respond to her statement that she needed to go home. He requested additional time. He did not demand it. Nor did he threaten any consequences if Laura did not comply.
The majority relies heavily on John Z.’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? (See People v. Mom (2000) 80 Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172] [suggesting force must be “substantially different from or substantially greater” than that necessary to accomplish the act itself].) And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for *768forcible rape? Such questions seem inextricably tied to the question of whether a reasonable person would know that the statement “I need to go home” should be interpreted as a demand to stop. Under these circumstances, can the withdrawal of consent serve as a proxy for both compulsion and wrongful intent?
The majority finds these deficiencies insignificant because this is a juvenile adjudication. But, if John Z. is convicted of a felony as an adult, the same juvenile adjudication will qualify as a strike. Thus, the absence of a jury or jury instructions cannot justify a lesser standard of proof.
In reviewing a criminal conviction challenged as lacking evidentiary support we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Presumably, in determining guilt beyond a reasonable doubt, the juvenile court would have to consider and resolve the same questions the majority declines to address. Because the record contains no indication the juvenile court did so, I respectfully dissent.
The People did not use the term “postpenetration rape” during the juvenile adjudication. The theory is first articulated by the Court of Appeal.