Yesterday a mid-level state appellate court in Maryland interpreted Maryland's common law in such a way as to preclude women from withdrawing consent to sex after penetration has occurred. The court itself admits that this ruling is predicated on ancient views of women as chattel whose value is lost upon penetration, rather than independent human beings whose suffering matters. The court took the position, however, that under the law of stare decisis (the obligation of a court to follow precedent), only the Maryland Supreme Court or the legislature could alter this outcome.
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.)
As Jessica at Feministing said:
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.
The court claims that it has no choice but to enter this ruling based on prior precedent -- a 1980 case called Battle v. State, 287 Md. 675, 683-85 (1980). The problem is that the portion in Battle regarding withdrawal of consent was dicta -- a portion of the decision that was unrelated to the facts before the court and therefore non-binding. Furthermore, as the court admits, this ruling is contrary to the weight of authority in other states throughout the country. Nonetheless, the court insists that since Battle provides the only indication of Maryland law on the issue, that the dicta in Battle must carry the day.
The court further admits that the law as stated in Battle is predicated on utterly antiquated, outdated, and grotesque notions of the status and personhood (or lack thereof) of women. As the court stated:
The concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law, views the initial "de-flowering" of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party -- the father or husband . . .
. . . [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 . . .
The court elucidates further the reasons for the law in effect TODAY in Maryland in footnote 6 of the opinion:
The cultural mores undergirding the notion that the crime of rape was complete upon penetration may be traced to Biblical and Middle, Assyrian Laws: Under MAL, the rape of a virgin was presumed to be an illegal trespass upon the father's property with the rapist required to "give the (extra) third in silver to her father as the value of a virgin (and) her ravisher shall marry her (and) not cast her off." The woman was required to marry her rapist without hope of divorce. If the rapist was married, the virgin still had to marry her rapist; however, the rapist's property, his wife, was also factored into the compensation. The rapist's wife was to be given to the father "to be ravished . . .not to return her to her husband (but) to take her."
This approach to rape developed because a virgin was considered a valuable asset, the value residing in men's ability to gain absolute ownership of the totality of her sexual and reproductive functions. Any infringement upon this totality through premarital sexual relations rendered the asset less valuable and might even turn it into a liability.
And there ya have it. This is why feminism is necessary -- because many of our presumptions on all sorts of issues are based on ancient values such as these. This is the kind of thing I mean when I say that women have to be eternally vigilant for their liberty and mindful of the millenia of second-class citizenship that women have faced until very recently in the west (or, more accurately, denial of women's very personhood).
This ruling is so outrageous that I have to believe that the court outlined all this history to encourage the Maryland Supreme Court to set new precedent and overrule the old common law. But is amazing to me that the court viewed itself as bound by dicta in Battle, despite recognizing that this non-binding dicta is based on views of women's status that are surely contrary to the laws of Maryland today.