Coitus Non Interruptus: Can Consensual Sex Become Rape

Cross posted from Crablaw Maryland Weekly

As discussed below by Isaac Smith, the Maryland Court of Special Appeals ruled today that a man who continued to engage in sexual intercourse for some 5-10 seconds after his partner demand that he stop cannot be prosecuted for rape in Maryland.

The following is a graphic discussion of the law and facts of the law of rape and consensual sexual intercourse. Please feel free to skip this post if frank and graphic discussion of such topics is morally or personally offensive to you.

The pro-feminist in me is at war with the law student in me on this decision.

The Court of Special Appeals did, in my opinion, an excellent job of interpreting the law of Maryland. I use the word interpreting specifically. Maryland is politically liberal and has been so for a long time, but its jurisprudence and constitution are moderately conservative. The Constitution of Maryland requires that the common law and statutes of England govern as the ystood on Independence Day, 1776, prevail as the law of Maryland unless modified by statute or specific court ruling. To quote the Maryland Declaration (Bill) of Rights, Article 5:

That the Inhabitants of Maryland are entitled [emphasis mine] to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. And the Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.

The fact that this section appears as an entitlement of the people of Maryland in our Declarations of Rights suggests that it is considered a bulwark against tyranny.

At common law, a rape was an unconsented penetration of the vaginal orifice. The crime was "perfected" upon penetration, no matter how slight. A penetration could not become unconsented through a revocation of consent, any more than a rape could become a "non-rape" if the victim hypothetically "consent" after the fact.

Could the General Assembly write such a law, to criminalize failure to cease previously consented sexual intercourse? Yes. Will the Courts uphold it? Yes. Has that statute been written? No. Should it be? That's a legislative question, I would say yes.

A common law regime is something like a Rubik's Cube. You may want to turn the "green cube" to the right, but you will undoubtedly move others. If the Court of Appeals or Court of Special Appeals has the power to expand the definition of rape, or get rid of the defense of consent, can it expand the definition of disorderly conduct, or eliminate self-defense as a defense, on its own, with no input from the political branches of government.

We would hope that judges would be both decent and wise. Yet it was a Marylander, Judge Roger B. Taney, who wrote as Chief Justice of the United States that a black Americans were, legally speaking,

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect

in the infamous Dred Scott decision. This in a decision that violated the state sovereignty of a state (not Maryland) that wanted not to return a fugitive slave, pursuant to its own laws, a decision neither jurisprudentially wise not humanely decent.

Maryland did have, interesting, a provision of law that did protect fugitive slaves, to wit Maryland's Declaration of Rights, Article 23, in pertinent part:

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact....

Jury nullification of bad laws - is the law, here, for criminal cases, a little known fact. But a hostile bench could attempt to erode this principle by which several Maryland juries refused to prosecute enablers of escaped slaves, out of grounds of, you guessed it, wisdom and decency.

Let no one think that the Defendant in this case committed no crime. He did, but not rape. He committed an assault. Maryland has retained the common law crimes of assault (threatened or attempting offensive touching) and battery (completed offensive touching), but has codified them into a unified assault statute for simplicity. To continue to touch someone after consent is withdrawn is a crime; assault is configured differently from rape in this regard.

The feminist in me rails against this result, its crass, mechanical view of human sexuality and the dignity of the human person, the retrograde heritage of this rape statute from the days in which a woman's virginity was her economic value - to her husband or father. But if one recalls Judge Taney, one can more easily defer to the wisdom of 148 in Annapolis, rather than to that of a small panel of appellate judges, to render and to rule.