Baby v. Maryland -- When No May Not Mean No
Tuesday, the Maryland Court of Appeals heard arguments in Baby v. Maryland to determine if consensual sex becomes rape if a woman says no in the middle of the sex act.
In October 2006, The Court of Special Appeals overturned a 2003 rape conviction, holding there is no rape under Maryland law if the woman consents to sex prior to penetration and then withdraws the consent after penetration.
This is what the reaction was almost a year ago to the Court of Special Appeals ruling:
The Happy FeministFeel free to read the entire decision (have your barf bag handy.)
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The court further admits that the law as stated in Battle is predicated on utterly antiquated, outdated, and grotesque notions of the status and personhood (or lack thereof) of women.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.
Now we'll see what the highest court in Maryland has to say.
Baltimore SunCertainly any person has the right to withdraw consent during sex.
Arguing for the state before the Court of Appeals, State's Attorney Sarah Page Pritzlaff said that when there is force, the act qualifies as rape.
"You clearly have the element of force, you have the resistance by the victim, the victim was quite clear that it was hurting, that she wanted him to stop."
Defense attorney Michael R. Malloy argued that if intercourse is consensual under existing common law it can't be rape. He argued that the jury that convicted had faulty instructions from the judge.
The Maryland attorney general's office asked the court to take up the case after a court of special appeals overturned a 2003 rape conviction. That conviction dates to the trial of a boy who was 16 when accused of raping an 18-year-old community college student in her car on Dec. 13, 2003. Maouloud Baby was convicted a year later in Montgomery County of first-degree rape and other crimes -- some from helping his 15-year-old friend assault the young woman first -- and sentenced to 15 years in prison, with all but five of those years suspended.
The victim, who had met Baby that night, testified at the trial that she told him that "as long as he stops when I tell him to" she would have sex with him.
As he began, she told him to stop because he was hurting her, but he kept going for five or 10 seconds, she said.
I read the decision of the Court of Special Appeals when it came out.
They are full of shit.
Courts have to follow the rule of law; that's why we have courts. What this court did however wasn't following the rule of law. It was legal horse-shit, a bunch of men following each other over a cliff rushing to uphold a man's privilege to treat women as chattel. It is simply wrong as a matter of law. I am cautiously optimistic the Maryland Court of Appeals will get it right.
If that fails, it is up to the legislature (and public pressure) to change the law. Which is precisely how the system is designed to work. (The legislature hasn't done a damn thing in the year this has been on their plate. Not a good sign. It's a man's privilege to fuck a woman any damn time he wants in Maryland. Always has been, always will be.)
As for the 10 seconds. In the throes of passion, I think 10 seconds is about the time a reasonable man -- one who perhaps was near la petite mort -- could reasonably take (5 to 10 seconds) to hear her saying "No" or "Stop", come back to earth, understand what she's saying, and indeed, get the fuck out of her. Including possibly double-checking she's saying "No" instead of "Oh, no, oh..." Sure, we'd hope he's not so damn selfishly focused on his own pleasure he isn't noticing how she's doing, but obviously that's not always so.
Ten seconds... as a rule? Bright-line rules don't work here. It's got to be a totality of the circumstances. Change your mind in the middle? Absolutely and always.
This specific case? You bet your ass it was rape. She didn't want to be with him to start and only gave grudging consent to begin with. Then the little bastard didn't stop when she said to, even though she was clearly crying out in pain. This was, without question, rape.
I hope the Maryland Court of Appeals gets it right, not just because of the case, but so that women of Maryland will know the law in their State no longer considers rape to be --
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 . . .Gah!!!
. . . [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.