Thursday, November 02, 2006

You Can Get the Rape Emphatic...

...but you can't get the rape after penetration, it seems, according to the Maryland Court of Special Appeals. Via Scott Lemieux, the Happy Feminist explains:

The case is Baby v. Maryland, __ A.2d ___ (Md.App. 2006). According to the young woman's testimony, the defendant asked to have sex with her and she consented on the condition that he would stop when she told him to. She testified that the penetration hurt "so I said stop and that's when he kept pushing it in and I was pushing his knees to get off me." After she told him to stop, he continued to "keep pushing it in" for about "five or so seconds."

For reasons that I won't get into in this post, the prosecution's theory in this case was that the whole situation was coerced and that her consent was not freely given in the first place. The jury, however, asked this question during their deliberations: "If a female consents to sex initially and during the course of the sex act to which she consented, for whatever reason, she changes her mind and the man continues until climax, does the result constitute rape?"

The trial court declined to answer the question other than to refer the jury back to the original jury instructions, which did not specifically address this concern. The jury convicted the defendant and the defendant appealed. The Court of Special Appeals of Maryland held that the trial court erred by failing to answer the jury's question. The court further held that there is no rape under Maryland law if the woman consents to sex prior to penetration and then withdraws the consent after penetration. I should note that this interpretation of the law would apply regardless of whether the man kept thrusting for five seconds or ten minutes after the woman said to stop. (Sorry to be graphic, but it's necessary.)

HF goes on to explain how the common-law definition of rape, which the Court of Special Appeals draws upon in its decision, dates back to ancient notions of women being regarded as property and virginity being the most valuable part about them. This is a highly bizarre ruling, one that you would think would not happen in the United States circa 2006, and in a state like Maryland, no less. I'm not a lawyer, so perhaps Bruce Godfrey can shed light on this decision, but either the Special Appeals judges are ridiculously incompetent, or, as HF speculates, are deliberately provoking the Court of Appeals to overturn the ruling and clarify the law. Either way, this is an egregious setback for women's rights.

UPDATE: A TAPPED commenter illustrates the absurdity of the ruling:



What do you mean, stop?

I've changed my mind.

Sorry, honey, the Maryland court just ruled that you can't change your mind. See, penetration is like a legally binding contract, and once you've signed it, you're stuck. If you have a problem with that, call your lawyer after we're done. Now kiss me like you mean it.

(Originally posted at The Old Line.)


Blogger Bruce Godfrey said...

Isaac, appreciate the vote of confidence. It does take me back to an intense conversation I had 14 years ago in Criminal Law. I will make an attempt at a post on this topic.

11/02/2006 10:21:00 PM  
Blogger Terry in Silver Spring said...

Just out of curiousity, who heard this case at the Court of Special Appeals?

11/02/2006 10:46:00 PM  
Blogger Terry in Silver Spring said...

Reading both this post and the one immediately above it, does this mean that in the case under appeal that the man should have more appropriately been charged with sexual assault rather than rape? I'm not a lawyer, so forgive me if this is a silly question.

11/03/2006 01:55:00 PM  
Blogger Bruce Godfrey said...

Not silly - spot on.

4th Degree Sexual Offense -
(b) Prohibited.- A person may not engage in:
(1) sexual contact with another without the consent of the other; .....

3-301 (definitions)
(1) "Sexual contact", as used in ยงยง 3-307 and 3-308 of this subtitle, means an intentional touching of the victim's or actor's genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.
(2) "Sexual contact" includes an act:
(i) in which a part of an individual's body, except the penis, mouth, or tongue, penetrates, however slightly, into another individual's genital opening or anus; and
(ii) that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party.
(3) "Sexual contact" does not include:
(i) a common expression of familial or friendly affection; or
(ii) an act for an accepted medical purpose.


It would appear that the act of sexual penetration by penis is specifically excluded here (e.g. is taken up under rape jurisprudence.) On the other hand, if other sexual contact occurred without consent, then it could be prosecuted. The Maryland Code does not have a separate charge of "sexual assault."

What was hard for me to adjust to in law school was the conservatism of criminal law. The criminal law does not permit a prosecution for being a generalized predatory threat, only highly specific conduct. On reflection, this is probably a good thing, but leads to perverse results and victims calling to heaven for vengeance that cannot come.

11/03/2006 02:35:00 PM  
Blogger Terry in Silver Spring said...

Agreed. That precision of language is probably a good thing is a number of ways, but certainly is a source of frustration to those of us who haven't studied law. We just tend to vicerally know that something is wrong and want it punished.

Thanks for taking the time to respond.

11/04/2006 04:21:00 PM  

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