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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no reversible error would have occurred (although the jury question strongly suggests that they don't believe consent was revoked until after the initial penetration).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.

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