MD Court: Women can’t say no after sex has started

This is perhaps one of the scariest rulings I’ve ever seen:

An appellate court said Maryland’s rape law is clear — no doesn’t mean no when it follows a yes and intercourse has begun.
A three-judge panel of the Court of Special Appeals Monday threw out a rape conviction saying that a trial judge in Montgomery County erred when he refused to answer the jury’s question on that very point.
The appeals court said that when the jury asked the trial judge if a woman could withdraw her consent after the start of sex, the jury should have been told she could not. The ruling said the law is not ambiguous and is a tenet of common-law.

Holy shit. Holy shit. Holy shit.
So ladies, once it’s in, it’s in. Ain’t nothing you can do about it. Changed your mind? Suck it up. He’s hurting you? Oh, sorry–should have thought of that before. After all, it’s not like your body is yours or anything. Jeez.
UPDATE: A reader sent us the Maryland decision; check it out.

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63 Comments

  1. Posted November 1, 2006 at 6:50 pm | Permalink

    Ismone:
    The court specifically examined the issue of whether or not the discussion in Battle was dicta and decided 1) that it was not, and 2) that the question was irrelevant to whether or not the trial court judge caused jury confusion by refusing to answer the question.
    Not being a legal scholar, I can’t argue the validity of either point, but given that it was explicitly considered, I wouldn’t take anyone else’s word for it being erroneous without a strong analysis with references. I can note that the discussion in Battle was quoted as “arguably dicta” in State v. Siering in Connecticut, 1994, but also quoted as part of the main holding by State v. Bunyard in Kansas, 2003.

  2. Bo
    Posted November 2, 2006 at 3:03 pm | Permalink

    Commenting on “Zed”‘s remark:
    Don’t you think the burden of making sure that the girl still consents to the act should be on the man?
    Bo

  3. Posted November 2, 2006 at 5:40 pm | Permalink

    Bo:
    As a general principle, yes, I do. (But I’m not sure why you’re asking that question of me, given that I’ve only made two comments so far, both on technical legal matters unrelated to that — are you sure you picked out the right commenter?)
    Incidentally, there’s no need to put “Zed” in quotes. It really is my name.

  4. jeffk
    Posted November 3, 2006 at 4:55 am | Permalink

    I must say that at first I was disappointed and outraged by the Court’s decision, but after reading the opinion in its entirety, I must agree with the previous posts that it was the correct legal decision, even if it reflected poorly on human rights.
    One of the most important items to come of this decision, though, is not only the problem with current Maryland case law on the subject, but the lack of statutory or case law in other states. The decision notes 2 states (Maryland and North Carolina) that reject the concept of “post-penetration rape” and 7 states that “unequivocally supported it” (Maine, Connecticut, California, South Dakota, Minnesota, Alaska, and Kansas). To me, this means that that we have a lot of work to do! Not only should residents of Maryland and North Carolina work on a statutory correction through their respective legislature, those of us in the other 41 states (including my home state of Washington) need to do the same. We should not wait until a court makes a decision in a case and gamble that they follow the precedent of the 7 states and reject the errant 2. We need to make sure that our legislatures correct this hole in the statutes as soon as possible.
    It’s difficult for me to say, but kudos must be given to the Court for doing deep research and introducing such texts as “No Means No: Weakening Sexism in Rape law By legitimizing Post-
    Penetration Rape” in their decision. It seems obvious to me that the Court would have found that a victim could withdraw consent after penetration if they were not bound by the antiquated decision by their higher court.
    In contrast, however, I find the dicta commentary on page 20 to be absolutely repugnant. It seems that the Court is offering their opinion as to the validity of the State’s claim that the victim suffered from Rape Trauma Syndrome, as if the effects could only be suffered post-penetration, “but would have no bearing on her actions preceding the alleged rape.” This side note could become just as damaging as the comment noted in the Battle precedent around which this entire decision hinges. In my opinion, the Court should not have commented on the syndrome whatsoever.
    While I feel that the next steps are clear with regard to getting our legislatures to address post-penetration rape, this particular comment troubles me immensely.

  5. Bo
    Posted November 3, 2006 at 3:01 pm | Permalink

    Sorry Zed, i was commenting on post by EJ:
    Screaming “NO NO NO NO!!” is easy to interpret, but saying “Stop” once and then not repeating it is…. what? Stop the sex? Stop that rhythm? Stop that position? Stop talking dirty? Stop what? Our law system is set up under the presumption that it’s better to set a 100 guilty men free than imprison one innocent one.”
    So you are saying that man has a right to continue having sex with the woman in case he is not really sure she wants it?
    So when a woman says “stop” , and the man isn’t sure what she means, wouldn’t it be logical to ask? Even if it’s change in position, shouldn’t the man “respond” to the request after clarifying what the woman is requesting for?

  6. AirynMichelle
    Posted February 11, 2007 at 9:04 am | Permalink

    This is ridiculous. and very scary.
    I’m 24 years old and I’ve lived in Maryland basically all my life…
    WHO DO I CONTACT TO GET THIS LAW CHANGED?????!?!?!?
    Anyone know? Are there any groups actively fighting this?
    I’m not very politically-savvy and I have no idea where to begin with this..

  7. kpsisu
    Posted February 11, 2007 at 10:08 am | Permalink

    Try contacting your state organization against sexual assault. or national ones like rainn.

  8. isfa
    Posted February 11, 2007 at 10:14 am | Permalink

    This organization seems pretty good (although I’m not from Maryland):
    http://www.mcasa.org/

  9. keypointist
    Posted November 1, 2007 at 6:13 pm | Permalink

    FIVE SECONDS….of unwanted penetration after she’d given her consent. I don’t think that is a commonsense definition of rape. The court got the decision correct.
    You feminists need to get your message to men straight. Either you want us to treat women as grown-ups with mature sexuality OR you want us to treat you as precious little twigs who break after 5 seconds of unwanted penetration. Which is it to be?
    Testimony from the complainant follows:
    A. Well he got on top of me and he tried to put it in
    and it hurt. So I said stop and that’s when he kept
    pushing it in and I was pushing his knees to get off me.
    Q. You were on your back and he was on top of you?
    A. Yes.
    Q. Did he stop pushing his penis into your vagina?
    A. Not right away.
    Q. About how long did he continue to put his penis into
    your vagina?
    A. About five or so seconds.
    Q. And then what happened?
    A. And that’s when he just got off me and that’s when
    Mike got in the car. . . .
    Jewel testified that appellant continued for five or ten
    seconds, but she did not believe that he had ejaculated.

  10. fatsweatybetty
    Posted November 1, 2007 at 6:27 pm | Permalink

    “You feminists need to get your message to men straight. Either you want us to treat women as grown-ups with mature sexuality OR you want us to treat you as precious little twigs who break after 5 seconds of unwanted penetration. Which is it to be?”
    keypointist – Well that’s a bullshit either/or if I ever saw one. Being an adult and having “mature sexuality” are not the issue. Unwanted penetration is rape.

  11. somethingrather
    Posted November 1, 2007 at 8:21 pm | Permalink

    this is like saying while you are signing papers to buy a house, half way through, you change your mind, and decided you don’t really want it and don’t sign on the final dotted line, it doesn’t matter, you already bought it. the law has many examples of allowing people to change their minds at some point in the process, which leads to totally different outcomes.
    p.s. i’m not going to md any time soon. i’ll stay in dc and pray to god the laws here aren’t so freakin stupid

  12. mpowell
    Posted April 18, 2008 at 5:56 pm | Permalink

    I remember when this case first came out. The facts are really confusing and somewhat bizarre. I think that’s related to the youth of the participants. My understanding was that the original judge was pretty bound by a clear law.
    And that original rape law makes sense from the standpoint of what rape used to be: a means of protecting men’s property. So obviously once the sex starts, it doesn’t matter if he finished or it gets to painful for the women b/c she’s already been ‘deflowered’. And that’s an antiquated law and should clearly be changed. After all, if you were having sex with someone and they decided they wanted to go anal and you didn’t, it would clearly be rape for them to force it on you.
    OTOH, the facts of this case confuse the issue. People will get upset over whether 5-10 seconds is too long. But there is a dividing line somewhere, right? And here’s another point: should the dividing line be the difference b/w no crime and 1st degree rape? I think 5-10 seconds is too long, but except under exceptional circumstances (like sudden unwanted anal penetration), I think it should be a minor sexual assault charge, not 1st degree rape. Of course, it’s unlikely that legislatures will do a good job of coming up with rules to govern these kinds of things, but juries will be able to use their judgement.
    I think the important thing here is to separate the debate about whether women should be able to withdraw their consent (of course!) from the specifics of what should the penalty be for taking 5-10 seconds to respond? Because I don’t see how anyone can really defend the position that the jail sentence should be the same for straight up, pre-meditated rape and for a 5-10 second delay (w/o any mitigating circumstances), but I do think there will be a lot of disagreement on how this case should be handled.

  13. Bruised_heart
    Posted October 4, 2009 at 2:19 pm | Permalink

    Any women has the right to say no after yes, but it is curious to know that she consented before. C’mon ladies, what kind of mind game is this, I mean sex is not like shopping for a blouse, you can’t just try it on and decide not to purchase. Sex isn’t window shopping. Your in the middle of the holyest of holyest acts, and after Agreeing to the action? Well if he can be labeled a rapist even though she consented to sex, then what is she? A victim, right. But a man before all this is a boyfriend and afterwards a rapist for life. Way to ruin someones life, both will have to suffer. But let’s compramise, if he’s a rapist for not stopping, then at the very least is she a promiscous tramp for letting this jerk inside. I’m sure they both learned their lesson. And so should all you out their; guys, if she says no anytime, you better honor her request, and ladies, know the man your with and don’t open your legs for anyone like a bitch in heat.

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