MARYLAND COURT'S INTERPRETATION OF RAPE LAW IS PREDICATED ON THE NOTION OF WOMEN AS CHATTEL

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.

(Emphasis added).

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. 

Comments

[Chipmunk]

Do we know yet whether the state will appeal this decision?

[norbizness]

HF: Do you have the statutory cite for the definition of sexual assault/rape in Maryland? As I said in the comment to Feministing's post on the subject, I think the deficiency is in that "sexual assault," at least in Texas, is defined by the initial penetration. So there's no un-ringing of the bell one way or the another (withdrawing or giving consent). Of course, this is an antiquated concept, but one solved by amending the Penal Codes of the respective states.

[Liz]

I'll comment here, even though I commented at Feministing and I think my comments were misunderstood. . .

I find it hard to believe that this isn't legally some crime even if it doesn't meet the legal definition of rape ...

[The Happy Feminist]

Chipmunk, The news report cited at Feministing didn't indicate whether the state plans to appeal. It did say:

Montgomery Delegate Jean Cryor said the Women's Caucus of the General Assembly would likely examine the decision during the next legislative session.

So I am optimistic that there will be a legislative solution.

[The Happy Feminist]

Norbizness, I don't have the Maryland rape statute handy or the cite. I don't believe the court discussed the statutory rape definition in its decision.

[The Happy Feminist]

Liz, consent and the law surrounding it provides an absolute defense to alleged crimes involving sexual penetration. So no, there is no other offense here that would apply. The court's ruling essentially means that it is currently legal in Maryland for a man to keep having sex with a woman who has consented but is now begging him to stop and trying to push him away.

(I should note that rape is not always man-on-woman. I use those descriptors to describe the typical scenario and the scenario that was at issue in the ruling.)

[mythago]

"Bound by dicta"? Yahuh.

I suspect that the court was using the case to send a message that the law needs to be changed. Too bad for the victim.

[norbizness]

Liz: I don't know if there is a lesser-included offense (assault?) or whether the defendant in this case was indicted on it. Not to be coy, but I read enough legal cases in a given day that the "page 1 of 51" sign on the bottom of the .pdf document gave me pause.

[DDay]

Here's the cite for first degree rape: Md. CRIMINAL LAW Code Ann. § 3-303. Subtitle 3 basically covers all of the sexual offenses.

Maryland's definition of rape refers to "vaginal intercourse". Sexual offense refers to a sexual act which means "any of the following acts, regardless of whether semen is emitted: (i) analingus; (ii) cunnilingus; (iii) fellatio; (iv) anal intercourse, including penetration, however slight, of the anus; or(v) an act: 1. in which an object penetrates, however slightly, into another individual's genital opening or anus; and 2. that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party."

And I don't think that the court was trying to send a message. The judges on this case were all males and include a retired judge who served from 1970-2000, and was brought back for this case.

[ACS]

It appears as though Maryland's rape law is as bog-standard as rape laws get -- it looks like it was based on the same model legislation as our revised rape laws in Washington. Other than the nasty case law in Maryland, though, it looks as though this is something that could happen in any state.

-- ACS

[Ismone]

This whole thing is especially ridiculous considering the intermediate court's disregard for precedent in other important cases. I had a law school prof. who practiced in Md., so I know a bit about the case law there. Even if they felt bound by this "precedent" (I mean--dicta) they could have gone kicking and screaming. They could have discussed the possibility of defining penetration as an ongoing course of conduct instead of a single act or threshhold that you cross. And the facts are just so bad in this case...

[norbizness]

Another thing: this wouldn't preclude retrial, in that the prosecution contends that consent was never given to begin with. Therefore, if the judge did answer the question, the person could have still been found guilty and no reversible error would have occurred (although the jury question strongly suggests that they don't believe consent was revoked until after the initial penetration).

[alkali]

Here is my 10-second summary of this opinion:

The original states frequently adopted the whole of English common law as the basic law of the state, except where expressly modified by statute. English common law had this rule we now find hideous and weird, because it basically treated rape as "criminal taking of virginity" rather than as the violent assault we now consider it to be. Because Maryland has never changed the rule, it's still law under Maryland precedents as recent as 1980.

Battle -- the 1980 precedent on which this court relied -- is a Maryland Court of Appeals opinion. Accordingly, this court -- which is the "Court of Special Appeals," an intermediate appellate court ranking below the Court of Appeals -- could not reverse that precedent however much it might have wanted to. If I were one of these judges, I might have taken more pains to emphasize that point (it is made indirectly in the footnote on p. 35 of the opinion).

HF comments:

The court's ruling essentially means that it is currently legal in Maryland for a man to keep having sex with a woman who has consented but is now begging him to stop and trying to push him away.

Actually, this is not so. The court spoke on this point:

Battle [the relevant precedent], of course, would not have been a bar to a conviction for common law assault for any continuation of the sexual act against the complainant’s will after the withdrawal of consent.

(Slip op. at 36.)

I.e., it can still be prosecuted as the punch-in-the-face kind of assault as opposed to a sexual assault.

[mythago]

DDay, why do you assume that males would have no interest in ending an unfair and sexist law?

[The Happy Feminist]

Battle [the relevant precedent], of course, would not have been a bar to a conviction for common law assault for any continuation of the sexual act against the complainant’s will after the withdrawal of consent.

I stand corrected, alkali. I missed that. That strikes me as very odd, actually. But the whole thing is odd.

[Richard]

I do understand people's objection to the ruling, but doesn't the truth of what really happened in a prosecuted rape case get murkier and murkier after the point where both parties have initially consented? As a practical matter I believe juries are more likely to have reasonable doubt after mutual consent, and for this reason I wouldn’t expect many prosecutors to jump on the bandwagon in bring these matters to trial.

Here’s another thought women might want to consider carefully. It is next to impossible in “traditional” never-was-any-consent-in-the-first-place rape cases for a woman to rape a man. However, that would change significantly as first-mutual-consent-then-no-mutual-consent cases become more common. Without getting too graphic, it is fairly easy to envision cases where a man tells a woman who is in a, shall we say, “assertive position” to “stop” (for instance, before he ejaculates) and, whoops, she doesn’t stop soon enough. I am assuming that since stop means stop, the activity must cease the very next second after consent is withdraw (no pun intended). “Linger” there too long, and that woman becomes a rapist, punishable by a decade or more in prison. That is, the rise (no pun intended) of
first-mutual-consent-then-no-mutual-consent cases will expose (no pun intended) women to rape charges where historically they have been rarely if ever seen in U.S. courts.

[DDay]

mythago - I'm not saying that males wouldn't have an interest in ending sexist laws. It just didn't seem that these judges had any special interest in trying to change these types of laws, at least from my quick look at their backgrounds. But I could be entirely wrong, I just didn't get that feeling.

[Richard]

>>> Mythago wrote: DDay, why do you assume that males would have no interest in ending an unfair and sexist law?

Wow, mythago! Challenging the stereotype. You’ve impressed me. I like it.

[sophonisba]

Here’s another thought women might want to consider carefully (...) Without getting too graphic, it is fairly easy to envision cases where a man tells a woman who is in a, shall we say, “assertive position” to “stop” (for instance, before he ejaculates) and, whoops, she doesn’t stop soon enough.

Let me get this straight. You think women ought to "consider carefully" whether we want men to suffer criminal penalties for rape, because if they do, women who rape men will also be held accountable for their actions. And you think we will not want this, because we do not want to lose what I can only describe as your notion of our 'rape privilege'.

No, thank you. I'd prefer to punish rapists. Yes, even if it means I don't get to rape men myself. Crazy, but true.

[The Happy Feminist]

Richard, I agree that rape cases get murkier (and more difficult to prosecute) if consent was withdrawn after penetration had happened. Doesn't mean that it's not still rape and it doesn't mean that juries won't convict. Indeed, the jury in this very case convicted despite apparently believing that the young woman had consented in the first instance but withdrew her consent during the sex act.

Here’s another thought women might want to consider carefully. It is next to impossible in “traditional” never-was-any-consent-in-the-first-place rape cases for a woman to rape a man. However, that would change significantly as first-mutual-consent-then-no-mutual-consent cases become more common.

So? I don't think women should sexually assault men any more than the reverse.

[Richard]

>>> Dday wrote: I'm not saying that males wouldn't have an interest in ending sexist laws.

Ah, yes you did DDay. Quote: “The judges on this case were all males and [ … ]” How does it feel to be a sexist, DDay?

[powderblue]

Feminists who are not vegans, or who do not have the ethical goal to become one, may gain empathy for the males who wrote and enforced those terrible laws in the past by examining their power relationships over nonhumans today. Property, chattel existing only for and at the pleasure of the dominant beings, kept in their exploited positions for their own “protection” – the similarities should be considered. Most agree that “might does not make right”, but too often that’s overlooked by those whose power is bestowed by tradition and sanctioned by prevailing notions of justice, however unjust they may be.

[Richard]

>>> Happy wrote: So? I don't think women should sexually assault men any more than the reverse.

Super. How many years would you give the woman in my example?

[The Happy Feminist]

Richard, Dday clarified and/or modified his/her statement. 'Nuff said.

As for what sentence I would give the woman in your example, it depends on what we're talking about. What sex act was she engaged in? What do you mean by "linger" after consent is drawn? How many seconds or minutes did this lingering last? Was the sex act causing pain to the man? These same considerations apply to male defendants as well.

This whole role reversal idea is a red herring. My opposition to sexual assault is not contingent on the genders of the people involved. I think women who sexually assault men SHOULD be held accountable, just as men are.

[Bunny]

Richard-- so, do you agree with the ruling, then? Do you think that a man has no moral or legal obligation to stop fucking a woman who's crying and begging him to stop?

I agree that it's murkier, but good god. It seems like you're much more interested in nitpicking than in seeing actual justice done.

Also, I really have no idea why you would imagine that feminists would be outraged at the idea of women being prosecuted for rape. Where are you getting this idea that feminists want women to be able to run rampant and do whatever they like while men have their heads in the stocks or something? I'm baffled.