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 October 31, 2006 at 10:29 am | Permalink

    I guess I could see how it couldn’t be rape just because you want to stop having sex in the middle of intercourse. But certainly there must still be a crime here. Abduction perhaps (not to repeat the rape ballet/abduction Fantasticks discussion!)? Still this is a dangerous ruling because where is the line drawn? If you stop (he withdraws) and then start again is this another time? How much time must pass before it is another sexual encounter rather than part of the same one?

  2. Jessica
    Posted October 31, 2006 at 10:36 am | Permalink

    Liz, what kind of person wouldn’t stop having sex if you said no if not a rapist? I mean, jesus.

  3. VanGaalen
    Posted October 31, 2006 at 10:45 am | Permalink

    what the hell!? of course you’re allowed to say no after having said yes! if you say no at any point, and they continue, it’s a violation. and my definition of rape = sexual violation.
    jesus. there are dumb laws, and then there are ridiculously discriminatory laws. and then then there are decisions like these that leave me speechless.

  4. Posted October 31, 2006 at 10:46 am | Permalink

    And how often do people explicitly ask and answer about sex? This is scary, because some people interpret a kiss as a “yes” to sex… does that mean that once you give *any* signal (a glance, yes to a date, being in the same room) that to a guy *might* be interpreted as “yes” to sex, you can’t say no?

  5. Posted October 31, 2006 at 10:52 am | Permalink

    I have to agree with suz. How often do we really say, “Pardon me, but would you like to engage in sexual intercourse with me?” or some such? That’s not usually how it works…so how do you interpret when “yes” was determined, and by whom? This law is bulls**t.

  6. Nick Simmonds
    Posted October 31, 2006 at 10:56 am | Permalink

    It’s weird, I can find all of one article on this. I’d like to see if I can find the decision itself.
    I’m always worried that allowing a reversal of consent, which a case in California established as allowed there a couple of years ago, will allow the converse; the “maybe she didn’t want it, but she had fun” defense. If you can revoke consent, can you retroactively give it? Of course, there are basically no circumstances in which someone would, but if it’s allowable at all it’d make some clear-cut rape cases into a “did she come” sort of humiliation fest.
    Realistically, consent can be revoked but non-consent can not. This strikes me, though, as the sort of gymnastics that rape apologists would go through. This is a bad decision, I’m just curious whether that’s what their reasoning was.

  7. Posted October 31, 2006 at 10:59 am | Permalink

    I guess I’m thinking that the difference between, um,no, that’s not it and STOP THIS RIGHT NOW is not always that clear. If, after 4 or 5 minutes of consensual intercourse, a woman (or man) wants to stop and says no, I would really have a hard time calling the other partner a rapist if they don’t stop right away. I realize that’s not the same as this case …

  8. Thomas
    Posted October 31, 2006 at 11:00 am | Permalink

    I just threw up in my mouth a little.
    In the real world, consent is more than the absence of “no.” Consent is enthusiastic participation. If she’s not into it, it’s not really consensual, and if it’s not really consensual, it’s really nonconsensual.
    The law, and especially criminal law, are beloved of bright-line rules, and “enthusiastic participation” is hard to apply. But “no means no” is not hard to apply. “Stop” is not a complicated concept. “Get off me” is not a complicated concept.
    The only way to interpret this ruling is that the judges believe the canard that once a man begins intercourse he loses his rational processes. It’s not true. Lots of people, both men and women, focus on their partner and alter their actions during sex for greater mutual pleasure — faster, slower, change positions, different angle, kiss, suck nipples — before, during and after orgasm. So, one _can_ pay attention to a lover, listen and respond. Most of us have probably had to take our hand off someone’s hair or readjust our position during sex. If one can do that, one can stop when one’s partner says, “stop.” (And does anyone actually think that people cannot stop intercourse mid-stroke if their parents walked in? We were all teenagers once.)
    The Maryland court cannot fail to understand this, yet ruled that consent cannot be withdrawn. They have made a policy choice that a man has a right to orgasm once intercourse begins and that this right supercedes a woman’s right to decide who gets to be within the boundaries of her own body. That is a policy choice that cannot be justified except as bareknuckled patriarchy.
    The way to change that, I think, is through legislation — the Maryland criminal rape statute needs to be amended. Someone should propose a “Right To Say No Act.” There must be women in the legislature who would sponsor it.

  9. Her Sin Is...
    Posted October 31, 2006 at 11:08 am | Permalink

    It reminds me of a similar (but opposite) situation that we had in Australia. A man was dubbed ‘The 30 Second Rapist’ for continuing to have sex with a women for approx 30 seconds after she withdrew her consent.
    The man was later jailed for sexual assault (the term ‘rape’ isn’t used the Criminal Code). Obviously the belief was that it is possible to sexually assault a woman any time after she withdrew her consent, which I can support.
    BUT, I should probably add that the woman was later convicted of conspiring to pevert the course of justice by making a false complaint, which made the Men’s Confraternity very, very, very happy because their opinion of women was ‘vindicated’.
    But to focus on the original point – no means no. At any point in time.

  10. kristin jane
    Posted October 31, 2006 at 11:28 am | Permalink

    If someone says, “no” and you force sex on them, that’s rape. I don’t care what happened beforehand.

  11. Caro
    Posted October 31, 2006 at 11:32 am | Permalink

    As a Marylander, I am appalled at this ruling from a court in my own (usually reasonable) state.
    Practically, I could see the argument that there would have to be a few moments leeway given for a man to stop having sex with a woman after she has withdrawn her consent. But if a woman withdraws consent at any point and the man just continues afterwards without a second thought? What about that is NOT rape?
    I can think of plenty of situations in which a woman could have a very rational reason for wanting to stop intercourse (e.g. pain), but also, there is no reason a woman should *need* a reason. If she says no, it’s no. Why is that so difficult for people to understand?

  12. Posted October 31, 2006 at 11:37 am | Permalink

    Yeah, this is just awful and disgusting. I think Thomas (above) put it best:
    “They have made a policy choice that a man has a right to orgasm once intercourse begins and that this right supercedes a woman’s right to decide who gets to be within the boundaries of her own body. That is a policy choice that cannot be justified except as bareknuckled patriarchy.”

  13. pdrydia
    Posted October 31, 2006 at 12:02 pm | Permalink

    God! We are planning to move to Maryland because of my SO’s work…seriously, we’re going to talk about this. That’s creepy.

  14. mirm
    Posted October 31, 2006 at 12:12 pm | Permalink

    With that sort of logic you would not be allowed to stop eating a hamburger, if you found a razor in it. Can these people be serious?

  15. Posted October 31, 2006 at 12:30 pm | Permalink

    It’s hard to believe that it’s as black and white as once he starts she CAN NOT withdrawl consent – can it be that plain? How can any rational person think that if at some point a woman wants to stop having sex that it’s okay for the other party to continue? Perhaps the court itself jury/judge will be part of the decision making process as to whether or not the circumstances seemed like the man intended to rape – there are always extenuating circumstances.
    HOWEVER, I think that the way it is worded in this post it doesn’t take any circumstances for the victim into account – it’s as if once you’ve let him in missy you better just DEAL. Which is bile inducing. I have two husbands and I know that if I needed or wanted to stop for some reason they would be very quick to do so. To NOT stop indicates a lack of caring for the woman – for all the man knows she could be sick or hurt or scared and if he keeps going – or WORSE, is turned ON by her rejection – there is no doubt it’s rape in my opinion in a circumstance like that. However, it seems that wouldn’t count for anything by the wording in the article.

  16. Posted October 31, 2006 at 12:31 pm | Permalink

    Remember taht this is a criminal case. So a few caveats apply:
    1) the court must comment on what the law IS. not what they would like it to be… but what is IS RIGHT NOW. That means going to look at both the law itself, and at relevant precedent.
    this issue may not actually come to appeal very much.
    It’s possible the relevant precedent is very old (if there is any at all). It is likey this precedent doesn’t reflect modern interpretations.
    2) Constitutionally speaking, criminal laws are interpreted strictly. If someone were to base their decision on reading the law and the precedent, they have to be secure that their actions are or are not criminal.
    So if the precedent IS clear that consent “carries on” through intercourse (assume for a minute that is true) then there’s a VERY high burden to meet if you want to prosecute someone under the theory taht consent does NOT carry through.
    This is easy to fix, though. Just pass a new law.

  17. DDay
    Posted October 31, 2006 at 12:35 pm | Permalink

    Holy crap! Hopefully, the Court of Appeals will overturn this soon (Court of Appeals is the highest court in the state). Does anyone know the names of the judges on this case?

  18. Posted October 31, 2006 at 12:53 pm | Permalink

    [Sarcasm alert...]
    Hey, this should be great precedent for medical research! As soon as a person gives consent as a research subject, the researchers can now legally hold that person and keep doing the reasearch, regardless of side-effects, etc.
    Oh, and it’s also really great to know that if some unwitting person invites me over to their house, I can start trashing the place, and as long as they are unable to physically throw me out, I don’t have to leave.
    I guess that might mean there’ll be less medical research and fewer friendly get-togethers, and oh, yeah, less sex too. But hey, the law is the law…

  19. Posted October 31, 2006 at 1:13 pm | Permalink

    Nick, the decision doesn’t seem to be available on-line except for caselaw databases like Westlaw which require a subscription. I summarized it in more detail at my blog.
    The court is very clear that consent CANNOT be retroactively given once penetration has occurred. Furthermore, consent CAN be withdrawn BEFORE penetration. Consent CANNOT be withdrawn AFTER penetration has occurred.
    At the risk of blogwhoring, I have summarized the reasoning behind the decision along with some choice quotations over at my place:
    http://happyfeminist.typepad.com/happyfeminist/2006/10/maryland_court_.html

  20. Posted October 31, 2006 at 1:27 pm | Permalink

    Well, i definitely defer to Happy Feminist on this one; I just couldn’t believe.
    It may have to do with the statutory definition of rape: it occurs upon first penetration, and is not an ongoing act, and is based on a weakness in existing Maryland laws defining rape.
    If penetration is the dividing point between giving or withdrawing consent, insofar as it is the overt act necessary for the criminal offense, then it’s time to update the law to conform with 21st century realities and some of the horrible hypotheticals that are possible (and discussed in HF’s post).

  21. donna darko
    Posted October 31, 2006 at 1:47 pm | Permalink

    More excuses for male entitlement and bad behavior. This is barbaric.

  22. Ismone
    Posted October 31, 2006 at 2:10 pm | Permalink

    Even if they felt bound by “precedent” (which Happy points out is dicta) they could have put up more of a fight. If a man continues to have sex with a woman who has withdrawn consent, he still “penetrates” her. If the statute was read so that penetration was seen as a course of conduct rather than passing a threshold, there would be no statutory problem. Arg. Iz

  23. Posted October 31, 2006 at 2:10 pm | Permalink

    For anyone who’s interested, here’s the opinion.
    One of my friends brought some disturbing language to my attention — page 30 of the opinion has some horrifically offensive language about “reflowering” and contains the sentence “The damage has been done.” This sends a chill through my spine. If sex is “damaging,” there is a PROBLEM. Sex should not be damaging. That appellate judges in Maryland see everyday sex as “damaging” women, is it any surprise there’s such a strong link in our society between sex and violence? Language like this leads to MORE rapes and MORE violence against women. Damaging women is not sexy, EVER. PERIOD.

  24. cherie
    Posted October 31, 2006 at 2:58 pm | Permalink

    This is SO messed up!!! I know I’ve changed my mind before, and I’m sure so many others have!!! Rape is such a touchy, gentle thing–meaning the boundaries are often blurred (in the eyes of the rapist)–i.e., “but she was kissing me earlier.”
    Next they’ll be saying, “Well, you were on a date, AND he paid for dinner.”
    This is revolting. Absolutely appalling.

  25. donna darko
    Posted October 31, 2006 at 3:16 pm | Permalink

    “She said yes three hours before she said stop, started hitting me, crying and screaming.”

  26. ahark1pd
    Posted October 31, 2006 at 3:30 pm | Permalink

    so this basically means that when i was raped in my sleep that it wasn’t rape. i didn’t say no until i was woken up by it–and he says that my body reacted favorably to him–which could very well be true, since i was ASLEEP. so does that imply consent that i then cannot retract once penetration happens and i wake up? no one can tell me that isn’t rape.
    And rape is not a purely female issue. it can (and does) happen to men, too, with women and other men. forgetting that rape can happen to any of us perpetuates an us-against-them mentality that does nothing to change things.

  27. Nick Simmonds
    Posted October 31, 2006 at 3:41 pm | Permalink

    Thanks for the link on the decision. Ugh.
    Typekey ate my last comment on this, but the upshot was that there are so many reasons why this is rape that I can’t believe they ever got to teh question of reversal of consent. The whole environment described is coercive, from tricking her into the back seat to groping her against her will. Gah.
    This decision is terrible, on so many grounds. Hopefully, the MD Supremes will reverse the precedent, and soon.

  28. Thomas
    Posted October 31, 2006 at 3:43 pm | Permalink

    Previewing your Comment
    The holding on the law is not the worst part. Through the magic of LEXIS, I downloaded the opinion. In the real world, when women are raped, the facts are not the clean hypotheticals we like to think of. The facts are usually a mess, and they demonstrate why, in a patriarchal and sex-negative culture, thinking of consent as the absence of outright refusal is so shortsighted.
    What really happened here is that the complainant, an eighteen year old woman, found herself in a car with two sixteen year old guys, parked in an isolated place. At some point, probably she was interested in some sort of sexual encounter with either one or both of them, though the decision summarizes rather than gives her testimony on this. One of the two guys asked to see her breasts and she says no, but he fondles her anyway. The decision then gives her account of the exchange between her and the rapist, which is telling is telling:
    Q. [ASSISTANT STATE'S ATTORNEY]: And what else did he say?
    A. He, after that we sat there for a couple seconds [*5] and he was like so are you going to let me hit it and I didn’t really say anything and he was like I don’t want to rape you.
    * * *
    Q. So when Maouloud said I don’t want to rape you, did you respond?
    A. Yes. I said that as long as he stops when I tell him to, then -
    Q. Now, that he could?
    A. Yes.
    * * *
    Q. Did you feel like you had a choice?
    A. Not really. I don’t know. Something just clicked off and I just did whatever they said.
    * * *
    Q. Now when you told [appellant] if I say stop, something like that, you have to stop. What did he do after you spoke those words?
    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. . . .
    The rapist essentially admitted the facts, but claims that she did not actually tell him to stop, but that she sat up, and that he immediately stopped when she sat up. I believe her based on my own determination of credibility, having read the testimony of both excerpted in the decision.
    Here’s the part that chilled me to the bone, because it is so common, and because law alone cannot fix it:
    Q. Did you feel like you had a choice?
    A. Not really. I don’t know. Something just clicked off and I just did whatever they said.
    That’s where the rape happened. When she perceived the situation as coercive, so that she just did what she was told whether she wanted to or not, she is not a consenting participant. She’s not doing this to seek her own sexual gratification, and not even because she wants to contribute to theirs. She’s doing it because she doesn’t think she has a choice. And if she doesn’t think she has a choice, she doesn’t have a choice.
    This isn’t about fun for her, this is about getting out of the situation with the least damage. This isn’t about mutuality for him; it’s about getting to do as much as he can without getting in trouble.
    If the standard for consent is “enthusiastic participation,” I think we all know that this fails. Reading the account she gave, she’s clearly not into it, but she’s playing along and not saying “no.” And the rapist knows that it’s not rape in the eyes of the law if she doesn’t say no. He must know she doesn’t really want to do this, but he can get her to do it, and to do it without even a verbal assertion of her right not to be sexual in a way that she doesn’t want.
    No sixteen year old boy can do this alone, or even with a friend. It takes a whole culture of oppression to make a woman passively acquiesce to sex that she does not want.
    BTW, I applaud the prosecutor for taking the case to trial, and for trying what actually happened instead of trying to gloss over the real facts and make the woman a character in a Lifetime movie. On my account, when a woman clinbs in the back seat of a car for have a threesome with a couple of guys, she does not surrender the right to decide what to do with her body and she does not guarantee them that they get to do whatever they want. Apparently, this prosecutor agrees. Hopefully, the Maryland Court of Appeals sees it that way too.

  29. Posted October 31, 2006 at 3:44 pm | Permalink

    I’m reading this wrong, right? I must be reading this wrong. There’s no way a judge just wrote that. No way.
    *sigh*
    Peace,
    TH

  30. Thomas
    Posted October 31, 2006 at 3:51 pm | Permalink

    And when I say “when a woman climbs into the back seat of a car to have a threesome,” I’m not saying that’s what happened here, but rather, if that’s what happened, she has a right not to be raped. What her intentions were at what point are unclear from the decision, which does not quote that part of her testimony. The prosecution says she was tricked into the back seat, but court indicates that the facts seem to show that she drove them to a secluded spot for the purpose of getting some privacy with them. What is clear is that, at some point, she really no longer wants to be there, and when that point arrives, she does not think that she can simply say no, but rather thinks she has to bargain for the best of a bunch of bad outcomes. I’m gonna go ahead and call that rape.

  31. tink
    Posted October 31, 2006 at 4:02 pm | Permalink

    This is so sad and so wrong, yet Tom Head’s post brings back most of my early twenties – I’ll just go limp, imagine I am somewhere else, and maybe he won’t hurt me. I didn’t even realize this wasn’t normal until one day, a guy stopped being affectionate (long before there was any chance of misunderstanding) and said, “If it’s no fun for you, it’s no fun for me.” THAT was a revelation and it SHOULD not have been. Granted that was 20 years ago. This is sad to say, but I am actually grateful that this was able to GET to court at all. Let’s hope the MD Supremes get it right.

  32. Ismone
    Posted October 31, 2006 at 4:10 pm | Permalink

    Thomas,
    “[She] thinks she has to bargain for the best of a bunch of bad outcomes.” I think that hits the nail exactly on the head. Wow.
    I’ve never been raped, but I have had bad things happen to me. I was at a restaurant and bar once with a friend at her birthday, and spoke to one of the other guests quite a bit. Towards the end of the meal, he made a joke about stealing the money for the check, and I said the others would stop him.
    He then put both hands around my neck and squeezed/shook a little, and pointed out that no one noticed that. I was in shock, and did not do what I would normally do if someone physically trespassed, which is slug ‘em. I literally froze when his hands were on my neck, and only leaned away slightly. But I continued the joke, saying that no one had seen him because they were too engaged in their conversations, and he grabbed me by the neck AGAIN. This time, I had the presence of mind to throw a block, break the hold, and tell him to knock it off.
    He then ordered a drink. I had a beer, mixed drink, and a pretty stiff long island at that point. (This may sound like a lot, I have a pretty high tolerance.) He had nothing. His drink came and was cold due to the blended ice. He put his hand around the glass to “warm it up” and then rubbed his hand up and down my thigh to warm his hands. I said, “Hey, don’t do that on my leg, you can do that on your own leg.”
    At this point, I was starting to get really freaked out. I thought he was drinking to “catch up” so if something happened, it wouldn’t be toasty me and stone cold sober him. I went to the restroom, and decided to flee. So I left the restaurant enough under the influence that if he had followed me I would have been in poor shape to put him off. Stupid, stupid, stupid. Fortunately, nothing happened.
    But I did not feel in control at all.
    The point is, when people are afraid and shocked by behavior that crosses the bounds of normal, we often don’t react well. Which allows the predator to take advantage of our confusion.

  33. Posted October 31, 2006 at 4:13 pm | Permalink

    Thomas, you make an EXCELLENT point: “This isn’t about fun for her, this is about getting out of the situation with the least damage. This isn’t about mutuality for him; it’s about getting to do as much as he can without getting in trouble.”
    The ["alleged," but hell, this isn't a court of law] rapist essentially admits as much in his testimony where he states that he was trying to “confirm the permission.” It wasn’t about her — it was about making sure he didn’t get in trouble. Which is precisely why he *should* get in trouble.

  34. Caro
    Posted October 31, 2006 at 4:25 pm | Permalink

    pdrydia, Maryland is a wonderful place, I swear! Don’t let this one insane misogynist ruling put you off the state entirely. Besides, we need even more people like you here to help us fight against things like this.

  35. ts
    Posted October 31, 2006 at 5:47 pm | Permalink

    and just when we thought it couldn’t get any more disturbing… the website that posted the story has a poll that asks: Do you agree with the courts ruling that no doesn’t mean no after sex has started?
    39% (729 people) agree with that statement. 729 people agree that once penetration has occurred a women can’t withdraw consent. And these people aren’t basing this on an outdated legal precedent, they actually believe it.
    PS Thomas what you’ve said here is right on!

  36. Thomas
    Posted October 31, 2006 at 6:43 pm | Permalink

    “729 people agree that once penetration has occurred a women can’t withdraw consent”
    Would it sound too dark if I said I would like a list of those people for future prosecution?

  37. Posted October 31, 2006 at 7:46 pm | Permalink

    This is horrible.
    But unfortunately understandable because of this critical 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.

    Common-law rape and statutory sex offenses (as well as rape) are both still on the books, so the jury instruction relating to common law would have to be given. Is it still wrong? Fuck yes, and the legislature’s probably going to kill that dumb shit. But the procedural matter…is valid.
    COA can technically fix it with its ruling, but more than likely if it does it’ll still ask for a sound and definite position from the legislature.

  38. Posted October 31, 2006 at 7:56 pm | Permalink

    Sky, true, but Happy Feminist raised the point on her site that the case law they rely on actually only made the relevant points in dicta. In addition, I believe someone else (in the comments here or at Happy’s site, I can’t recall) noted that, strictly speaking, “penetration” could refer to each individual act of penetration — that is to say, once a woman withdraws her consent, no more additional penetration may be made. Thus, no more thrusting. This rule would also be within potential purvue of the law and would not run contrary to anything even in the strict language of the law (not that the strict language is itself the only thing modern courts do or should consider).

  39. Posted October 31, 2006 at 8:07 pm | Permalink

    I understand what you’re saying. But the common law definition of rape is not dicta and has not been abrogated by statutory sex offenses. It has been clarified (meaning that it is now illegal under certain circumstances in Maryland for a husband to rape his wife), but it has not been eradicated.

    . . . [I]t was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male’s interest in a woman’s sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be “re-flowered,” that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape. Maryland adheres to this tenet, having adopted the common law, which remains the law of the Land until and unless changed by the State’s highest court or by statute . . .

    This is what I’m emphasizing. The common law is not dicta. The case makes reference to common law in its dicta, but the common law itself is still on the books. Since the defense attorney was astute enough to find that single precedent and to uncover that provision of the common law, it still applies until the COA and/or the legislature get rid of it. The COSA cannot override the COA ruling, and since that particular part of the dicta is part and parcel of the English common law that MD adopted in its entirety when it wrote its constitution, it stands until the legislature [rightfully] scraps it.

  40. Posted October 31, 2006 at 8:46 pm | Permalink

    Gotcha. I have to admit I haven’t had the time to read the case in depth, I’ll have to do that later. But I will be combing for valid cites :)
    It is strange to me that common law trumps here, though… I guess I need to read the case more carefully to understand why the judge would be obligated to instruct the jury on the common law, versus on statutory law. Unless the prosecutor only brought common law charges (which I highly doubt)?
    And anyway, if the best precedent is 25 years old, a bit of that dreaded “judicial activism” might be called for. I’d be really disgusted to learn that these judges knowingly did the wrong thing simply out of idiotic fear of hurting their reversal ratio. Poetic justice would in that case result in a stern and strongly-worded reversal.
    And I, for one, would love to see how the conservatives decried that kind of “judicial activism.” It would certainly put them in the uniquely untenable position of advocating against abortion, on the one hand, and for ejaculation in every case of intercourse on the other.

  41. the_becca
    Posted November 1, 2006 at 10:40 am | Permalink

    Shit shit shit. I live in MD. Actually… I live about a 5 minute’s walk from the state house here, do you suppose there’s anything I could actually *do* about this?

  42. Posted November 1, 2006 at 11:31 am | Permalink

    As a few others have pointed out – I read the opinion in it’s entirety, and basically it says that many states have laws that say withdrawing consent after penetration is rape, but in Maryland the “ancient” common law that once consent is given it is not rape is still on the books.
    It sucks, but from a legal point of view, judges don’t MAKE laws, they rule based on the CURRENT ones. They rightly suggested in the opinion that the law could/should be changed by the legislature or appeals court. However, according to CURRENT law, they state that the jury should have been told that withdrawing consent after penetration is not considered rape according to MARYLAND COMMON LAW.
    Also, with regards to the “offensive language” about deflowering women and the “damage being done” once sex occursthat was mentioned by a previous poster – the Court was not making that assertion, merely summarizing the common law and old fashioned reasoning behind the initial law.
    Hopefully this case will bring about action by the state government to amend/change the law to be more in line with most state laws that do allow withdrawal of consent after penetration (this case history is also presented in the full opinion).
    Before giving these judges a bad rap, please read the ENTIRE opinion.
    Also, as someone who has lived in MD her whole life – it is one of the most liberal, women-friendly states in the country. For the poster worried about moving here – don’t worry. Just DON’T move to Virginia!

  43. Vervain
    Posted November 1, 2006 at 1:16 pm | Permalink

    Several commenters have already covered the repugnant premise “What? He’s hurting you? Too bad, suck it up.” so I won’t address that, but I do have a couple other observations:
    The premise here is that once intercourse begins, it has to continue until it comes to a conclusion. It should be pointed out that “conclusion” is defined as when the man has an orgasm, whether or not the woman does. The implied assumption is that once he’s finished, the sexual act is finished.
    And suppose the woman consents, but the man can’t finish for some reason–ED, too drunk, on prozac…whatever. No one would ever argue that he has some sort of obligation to the woman, or that he has to make some kind of reparations for failing to “deliver,” as it were. No, we’d just get, ‘Sorry babe, guess he’s just not that into you.’
    This whole thing is just lousy with male entitlement.

  44. Posted November 1, 2006 at 1:18 pm | Permalink

    The Law Fairy:
    As far as I can tell, common law trumps here because there isn’t any guidance under statutory law — the statutory law appears to have some serious problems, too. The question about whether the post-penetration rape discussion in Battle constitutes dicta is also a very ambiguous question that has been resolved in both directions by other cases referring to Battle.
    I just spent a lot of time poring over the laws and the decision, and have blogged my own analysis, if it helps (and I certainly invite corrections from an actual practicing lawyer if I’ve written anything obviously wrong), but it is far too long to just paste in here.
    In practice, MD may be women-friendly, but I think the statutes on sex crimes need a lot of revamping.

  45. Erin
    Posted November 1, 2006 at 2:14 pm | Permalink

    Aaah. I just know I’m going to get flamed for this one.
    The ironic thing is, my BF and I were talking about this subject just last week. I made the off-hand statement that things aren’t as black-and-white as people like to believe and I mentioned the Duke case and the Kobe Bryant case. I said that too often people get polarized and say that the woman is an innocent, virginal angel or a vicious, conniving bitch trying to ruin lives. I suggested that a woman could legitimately _believe_ she was raped while the man could legitimately _believe_ he hadn’t raped her at all.
    My BF was pretty shocked and said that rape was rape and pretty clear cut. I said, “Take a situation like the Kobe Bryant case. They both said she was in the room, and that sex took place. She said rape, he said consensual. Suppose that she DID say ‘yes’ and/or give an indication that sex was on her mind and they started doing it.”
    My BF said, “Well, then he was right – it was consensual and she would be wrong to call it ‘rape’.”
    I said, “But what if, halfway through, she changed her mind? She felt guilty about what she was doing or maybe he got a little rough and she didn’t like it? What if she said ‘no’?”
    My BF played along and said, “In that case, it may have started out as consensual, but if she said ‘no’, he should have stopped. Otherwise it’s rape.”
    I said, “What if he didn’t understand what she meant? I’ve said ‘no’ plenty of times during sex. Sometimes I mean that I want to change positions or rhythm; other times I’m playacting or teasing. What if she said ‘no’ or ‘stop’ but he didn’t understand what she meant? What if he kept going and she didn’t keep saying ‘no’ because she was afraid or just resigned to seeing it through and getting out of there? In that case, isn’t it possible that she could legitimately feel violated but he could be legitimately ignorant as to her feelings?”
    Okay. I probably wasn’t quite that eloquent in the actual conversation, but that was the jist of it. Women are conditioned by society that if sex is bad, we should just close our eyes and deal and it will be over soon. It’s sad, but it’s not the man’s fault if we don’t make it clear what we want.
    Now, I’m not saying that this happened HERE – I read the transcript and it’s a totally different situation. That said, I can see why the laws are cut to come down on the side of the alleged rapist. Consent is easy enough to interpret – if she helps you to penetrate her, she’s willing. Nonconsent, once started, can be a lot harder. 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. I think that the courts just felt that the issue was too difficult to decide and, legally, decided that consent couldn’t be withdrawn after sex started. That doesn’t mean that, common-sense-wise, consent can’t be withdrawn; just that legally it’s hard to prove innocence or guilt at that point and it’s better to craft the laws so that an innocent man doesn’t get wrongfully imprisoned.
    I don’t really like it, but I understand why MD made the decision they did. Hope I didn’t come off as too trollish.

  46. Posted November 1, 2006 at 3:45 pm | Permalink

    I just read the case.
    As I expected, the court intimates that it is unhappy with the decision. It notes–correctly–that the modern view is one in which consent CAN be withdrawn. It lists a variety of cases and opinions to bolster that fact.
    But then it says:

    It [no rape if consent is withdrawn post penetration] is currently a statement of Maryland law, that has neither been overruled nor commented upon negatively. Whether it should be
    revisited in light of the weight of authority to the contrary is a matter for the Maryland legislature or the Court of Appeals.

    I hate to say it… but I believe this is the right decision FROM A LEGAL PERSPECTIVE. This is an appellate court, not a supreme court. It can go looking for precedent (which it obviously did). It can, if there is no precedent, go on its own accord to develop a ruling.
    But when there is, unfortunately, precedent… AND when the precedent is not accompanied by negative commentary in other decisions (this is the “commented negatively” in their quote)….
    then the court has no legal basis to give a different decision. they are OBLIGED to apply the law as it stands–not the law as they want it to be, or wish it were, or think it should have been.
    unfortunately our legal system is reactive. I think this existing law is atrocious and believe it will be amended promptly. And it is always possible that the Supreme Court will elect to change their viewpoint on further appeal.
    But though I hate the result, i respect the judge. The judge did the right thing.

  47. Posted November 1, 2006 at 4:00 pm | Permalink

    I just read the case.
    As I expected, the court intimates that it is unhappy with the decision. It notes–correctly–that the modern view is one in which consent CAN be withdrawn. It lists a variety of cases and opinions to bolster that fact.
    But then it says:

    It [no rape if consent is withdrawn post penetration] is currently a statement of Maryland law, that has neither been overruled nor commented upon negatively. Whether it should be
    revisited in light of the weight of authority to the contrary is a matter for the Maryland legislature or the Court of Appeals.

    I hate to say it… but I believe this is the right decision FROM A LEGAL PERSPECTIVE. This is an appellate court, not a supreme court. It can go looking for precedent (which it obviously did). It can, if there is no precedent, go on its own accord to develop a ruling.
    But when there is, unfortunately, precedent… AND when the precedent is not accompanied by negative commentary in other decisions (this is the “commented negatively” in their quote)….
    then the court has no legal basis to give a different decision. they are OBLIGED to apply the law as it stands–not the law as they want it to be, or wish it were, or think it should have been.
    unfortunately our legal system is reactive. I think this existing law is atrocious and believe it will be amended promptly. And it is always possible that the Supreme Court will elect to change their viewpoint on further appeal.
    But though I hate the result, i respect the judge. The judge did the right thing.

  48. Kenneth Ashford
    Posted November 1, 2006 at 4:40 pm | Permalink

    I read the case and I think it is being misinterpreted.
    The jury sent a note to the judge asking the question (I’m paraphrasing) “Can consent be withdrawn after penetration?”
    After wrangling with the attorneys, the judge did not answer the question. And that was the issue that the case centered around — the judge’s failure to answer.
    The key point is in the decision at page 36, fn 9:
    “In light of our holding that the trial court erred in refusing to respond to the jury’s question, we need not reach an issue that was apparently of concern to the jury“.
    So, I think your characterization of the court’s holding is wrong.
    I also might add that the man was told to stop, he withdrew “within five to ten seconds” (and that’s according to the alleged victim’s testimony). Granted, I’m sure that 5-10 seconds is too long, but realistically, it is virtually impossible to heed the request to stop, process it, and “pull out” instantaneously.

  49. Ismone
    Posted November 1, 2006 at 5:58 pm | Permalink

    skyanide–in response to your point about common law (CL), the penetration rationale they raise and you quote is only applicable when a virgin is raped. Sexually active women can’t be “deflowered” as such. Since rape laws now apply to non-virgins, it is tenuous to base a decision on that abrogated CL analysis. Also, unless they can show that their is a CL case on point that is not dicta, they are not bound. (And I am willing to accept Happy’s analysis that Battle is not such a case.) The COSA in Maryland is not as deeply respectful of precedent as commenters here give them credit for being. I have seen them strain to avoid CL precedent even when there are three cases on point by erroneously describing the precedent as dicta when it was not.
    While an initial penetration, however slight, may be enough to make out rape, this does not mean that continued penetration after the withdrawal of consent is not rape.

  50. Posted November 1, 2006 at 6:00 pm | Permalink

    Not to put too fine a point on it but as other have noticed the appeals court judges weren’t very comfortable with their ruling. Consider their remark that it’s the law of the land “until and unless changed by the State’s highest court or by statute.”
    I’ve already contacted my local representatives and asked them to change any statutes that might permit this sort of interpretation. Not surprisingly they were interested. But the circumstances of the case would put even the most reluctant conservative legislator on the spot so there’s no reason not to call ‘em up.
    Note: don’t consider this just a quirk in Maryland law. The court’s opinion cites similar findings in other states.

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