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Tuesday, October 31, 2006

Rapists 1, Women 0

posted by on October 31 at 13:05 PM

A Maryland court has ruled a woman can’t withdraw her consent to sex after initial penetration has occured.

In other words, once sex starts, you forfeit control over your own body. Changed your mind? Too bad. Feel coerced? Tough shit. Even if you say “stop,” or “no,” or “that hurts”even if you yell and struggle and begyour partner can do whatever he wants, as long as it’s already in. His right to come trumps your right to control your own body (by “withdrawing consent” to sex) every time.

The complainant, an 18-year-old-girl, told the court that the defendent “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.”

Pretty clear-cut, right?

Here’s how the court responded: “Under Maryland law, the answer is “no” to the question, “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?”

Jesus.

Via Feministing.

RSS icon Comments

1

This is why activist right-wing justices shouldn't be let anywhere near the law.

Posted by Will in Seattle | October 31, 2006 1:05 PM
2


I think I'm going to be sick.

Posted by sp | October 31, 2006 1:09 PM
3

What. The. FUCK.

Posted by wendy | October 31, 2006 1:10 PM
4

And if she gets pregnant... well that's just her problem now isn't it.

Posted by monkey | October 31, 2006 1:12 PM
5

Taliban here we come. Getting rid of damaged shitbag judges is almost impossible.

Posted by Fnarf | October 31, 2006 1:18 PM
6

Is it ok to fetishize the sexy one-legged female graphic on the feministing.com site?

Posted by In my opinion | October 31, 2006 1:31 PM
7

It's the legislature that let a law like this remain on the books that's the problem - the trial judge was technically not doing his job as a judge when he refused to answer this question, but he was doing his job as a decent human being. The appeals court judge... I think I would have to end my career and resign before ruling as the appeals court judge did in this case.

Posted by Noink | October 31, 2006 1:41 PM
8

So wait... you think that a woman has a right to, once a man's consensually inside her, to suddenly double back and call it a rape?

The alternative is to set an equally dangerous precedent.

Posted by Gomez | October 31, 2006 1:45 PM
9

Now that said, the line can get rather blurry... but this girl's case is certainly a case where the guy should have pulled out.

Posted by Gomez | October 31, 2006 1:47 PM
10

No, Gomez, obviously I'm not saying that. I'm saying that if a woman tells a man she wants him to stop, and he refuses, that's rape.

Posted by ECB | October 31, 2006 1:47 PM
11

Fair enough, but you're asking the justice here to set a dangerous precedent, to say that upon consensual penetration, a woman can cry rape, and it's rape.

The court is damned if they do and damned if they don't.

Posted by Gomez | October 31, 2006 1:49 PM
12

A woman should be able to cry rape whenever she is raped. That is not a difficult concept. To say that certain kinds of forced sex acts (in this case, any forced sex acts that occur after penetration and before the man's climax) can never be considered rape under the law is beyond fucked up. I see your concern, Gomez, but you are making a false choice. The alternative to this precedent isn't that a woman can just decide she is being raped in the middle of sex that she originally consented to.

Yes, women sometimes falsely accuse men of rape. That is a why there are trials, to examine evidence and find out the truth. There are legal standards for what is considered proof. It takes more than a woman's say so to send a man to jail.

Posted by Lark Hawk | October 31, 2006 2:07 PM
13

Gomez, yes, the line is blurry, and to be honest I'm not sure what the solution is. All I know is, I'm extremely uncomfortable with the idea that I can be having consensual sex with a man, and then he starts beating the ever-loving shit out of me or choking me while he's fucking me, and I can't legally call that rape.

Posted by wendy | October 31, 2006 2:09 PM
14

No, I'm not saying that either, Gomez. I'm saying that if she says no, and he refuses to stop, that's rape. I'm not saying that she can have consensual sex, never say no, and then cry rape after the fact. That's completely different than what we're talking about here.

Posted by ECB | October 31, 2006 2:10 PM
15

A woman can't just "cry" rape and have it be rape. She has to report a crime, the prosecution has to decide to prosecute and there has to be a jury trial (or a plea bargain). It is not easy. If the jury thinks that she is lying, they will not convict. If she thinks the sex is bad, and decides to call it rape, the jury will not convict. If the jury is convinced that she withdrew consent by saying "no" "stop" "get the fuck off me" and he does not stop, he should be convicted.

Posted by Papayas | October 31, 2006 2:14 PM
16

I gotta go with Gomez on this one.

Though generally, I think the thing to do is to lie, and say you said no from the beginning, and you were too frightened to put up a fight. Or put up a fight at the half-way mark and say afterward that you'd been fighting all along. I mean, the exact question of when you said no is kind of up for grabs, innit?

Posted by Joshua | October 31, 2006 2:15 PM
17

Also-- ECB, "when it's rape" and "when we can prosecute for rape" are, and should be, separate questions.

Posted by Joshua | October 31, 2006 2:16 PM
18

With one extreme, the violent scenario, we have to consider the other, where the couple consents and the man penetrates... and then the woman cries rape, and whether or not the man pulls out, it's legally considered a rape. What happened here is a terrible case and the wrong decision, the decision not to prosecute the male who refused to pull out upon the girl's request, was made. We're in agreement there.

But still, every legal decision sets a legal precedent which must be followed in future cases. The focus of the decision should not have been based on penetration, but on the fact that the girl said no, and that the guy ignored her. The court put their focus in exactly the wrong place.

Posted by Gomez | October 31, 2006 2:27 PM
19

I think this is what Lark Hawk was saying but just to be sure:
a ruling of rape in this case would not have meant that a "upon consensual penetration, a woman can cry rape, and it's rape" as Gomez argues. It would mean that when a woman says "stop" and and he keeps going he is committing rape. The point at which the girl clearly communicated that she wished to stop (and in this case struggled and was held against her will) is clearly the point at which the sex ceased to be consensual.

Posted by Chance | October 31, 2006 2:30 PM
20

It was a three judge appellate court of special appeals who threw out the original rape conviction. One of the judges (Charles E. Moylan, Jr.) retired in 2000, he should obviously be put back out to pasture.

Read the court's sordid opinion here, unbelievably entitled Baby v. State

Even if the details of the case they threw out do not support a rape conviction, to attach an overarching precedent of "no means nothing" to future rapes cases seems criminal. The other two judges on the court (Arrie W. Davis and James A. Kenney, III) should have to register as sex offenders for conspiracy to commit rape.

Posted by Diana | October 31, 2006 2:48 PM
21

Thank you, Diana. I was logging on to post the same link to the opinion. I take issue with the notion that the appeals court was doing its job, and that both the legislature and the trial court weren't doing theirs. this isn't as much a question of a bad statute as using BAD, OLD case law to support a ruling that is very difficult to stomach. To say that the legislature failed in not anticipating such an issue and correct it shows a misunderstanding of many steps in that process.

Posted by Ginger | October 31, 2006 4:49 PM
22

I doubt they said "no means nothing", as you can still say no beforehand. But there is a potential grey area: she says 'no' or stop during sex after initially consenting. At that instance, he is technically raping her. Does he get time to pull out before it's considered rape? What if he comes while doing so? What if he thrusts once or twice and then pulls out?

Posted by him | October 31, 2006 4:49 PM
23

Him:
The question of getting time to pull out is a good one, and ultimately one for the jury to decide when they're deciding whether the defendant used force to engage in sex. And we don't need a separate instruction for that--if we answer all of the questions for them, there's no point in having a jury. The scary precdent here is that a woman can not revoke consent. Even under the 4th and 5th amendments, you can change your mind as to whether you want to talk to the police or consent to a search.

When does your prior consent lose its effect? If a man pulls out for a minute or two, and then wants to start back up and you change your mind, does the prior consent still matter? There's nothing in the statute that requires the court's ruling, and there was plenty to justify a different rule (regardless of the case they cite over and over again).

Posted by Ginger | October 31, 2006 5:10 PM
24

did he get it in writing -

Posted by JACKIE | October 31, 2006 5:14 PM
25

It's a bit unfair to criticize this court, which didn't have the power to do anything about the law that (by my reading of the opinion) it rather reluctantly followed. What the court said, essentially, was that an old decision of Maryland's highest court established the law, and if the law was to change, either the higher court or the Legislature had to change it. That's defensible--an intermediate court has to follow the rulings of a higher court; only the higher court has the power to overrule its own decisions, no matter how stupid they are. The court also explained, in detail, all of the decisions in other jurisdictions going the other way, which reads to me like a big hint to the high court to take the case on further review and change the rule. These aren't right-wing judges--they're responsible jurists with a clear understanding of what they have the power to change, and what they don't.

Posted by David | October 31, 2006 5:36 PM
26

By the judges ruling that means if i touch a guy's cock and he let's me i get to keep touching it as long as i want. i can keep my hand there for as long as i want, regardless of what he wants

Posted by jane doe | October 31, 2006 8:48 PM
27

Jane, I don't think the ruling goes that far. I'm sure the court would say that it's a limited holding that applies only to Rape 1.

David, while you may be right about the court of special appeals wanted to let the court of appeals (the highest court) make the change, but courts often use stronger language when they do that. and of course it's not unheard of for an intermediate court to buck the precedent.

Posted by Ginger | October 31, 2006 9:32 PM
28

i guess if he can't cum he can just fuck her forever while she screams no? and i suppose if someone covers someone else's mouth so they can't say no, then they can do whatever they want too? what would valerie solanas do.

Posted by avi | October 31, 2006 10:50 PM
29

I think hookers are an excellent solution to the whole rape debate.

Posted by montex | November 1, 2006 12:42 AM
30

Ginger, I agree with you that some courts have used stronger language, and that some have even defied higher authority. I just think it's defensible for the intermediate appellate court to feel bound by stare decisis. The court wrote that the controlling Maryland high court opinion was "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 [Maryland's highest court,] the Court of Appeals." The court also noted that "[i]n the states which have adopted the common law, the principle that post penetration withdrawal of consent does not constitute rape has been changed by statute or court decision." Unmistakably, the court was inviting a change in the law from someone that has the authority to do so.

Make no mistake: the Maryland rule is stupid. But let's not be too harsh on these three judges for following a rule that, legitimately, they were legally bound to follow, especially when they as much as asked for change from someone with the legal authority to make that change.

P.S. Montex: you think prostitutes don't get raped? For that matter, you don't think prostitutes are, in many instances, victims? And most importantly, you really think that rape is just about sexual satisfaction, and not gender and power? Your glib, overly simplistic response to a tragic social problem doesn't contribute anything to serious discussion of the issue.

Posted by David | November 1, 2006 8:22 AM
31

David, I would have liked them to come out stronger on this. Actually, I would have liked them to say that the statute says nothing to indicate that consent is a one time thing, acknowledge that the 1980 ruling was based on case law in other states (many of whom have now changed direction) from the first half of the 20th century, before anyone would ever seriously entertain the notion of date rape or a rape shield law.

And it's really frustrating to read the appellant's brief, which is maybe 2 pages long.

Posted by Ginger | November 1, 2006 10:13 AM
32

Ginger, I understand your frustration with the admittedly restrained tone of the opinion. But experience would indicate that an intermediate appellate court's attack on a controlling precedent is more likely to get a defensive reaction from the high court than a more tactful approach. In all honesty, the court's opinion read about as I would have written it, if my goal was to actually get the law changed. It's a stylistic choice, I guess, but a reasonably prudent one. That having been said, sometimes it doesn't hurt to have a little more awareness of public perception.

Where did you find the appellant's brief? The only thing I can find on Westlaw is the reply brief, and I don't know where else to find Maryland briefs online.

Posted by David | November 1, 2006 12:22 PM
33

Jane Doe:
You've hit the nail on the head (just please don't do it after I've only given you permission to wisper it sweet nothings).

This is another case of the government/society interested in asserting control over the vagina more than the penis.

Note: read the decision linked in the post above.
The court may be following precedent, but it didn't have to do so quite soo gleefully. The black letter rule defined here in the decision is grotesque, BUT when you read the facts of what happened its hard to feel it merits a jail sentence of 5 to 15 years for this act commited by a 16 year old.

As Zed put it on Resonant Information, AFTER shredding the appeals court decision into little pieces:

"At most, I see here recklessness, and perhaps merely negligence — a failure, perhaps a willfull failure, to consider the girl's feelings, but there was an explicitly stated desire not to actually commit rape, and an explicit request for consent, which was affirmed. I'm not convinced that it is in society's best interest to bring the full weight of a sentence for first-degree rape on that sort of error." http://www.resonant.org/20061101-sexual-consent-in-maryland

Zed's analysis is very useful as a guide through the text of the decision itself.

Posted by Mirror | November 1, 2006 12:51 PM
34

David:
When I saw in the case where the court starts talking about re-virginizing, I wondered if they weren't trying to highlite the primitive thinking underlying the Battle case precedenet. But these days I dont trust myself to make such distinctions - the most powerful people in the country regularly act as if they were persons parodying them. I get confused.

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