Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Irene Weiser" <>]

Here's additional info/interpretation from "the Happy feminist" website
(author is a former prosecutor)

http://happyfeminist.typepad.com/happyfeminist/2006/10/maryland_court_.html ;

 

Full text of decision here
http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf ;


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
<http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf>  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
<http://feministing.com/archives/005965.html#trackback>  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.  

October 31, 2006 

 

Irene Weiser

Stop Family Violence

331 W. 57th St #518

New York, NY 10019



607-539-6856

**************************************

www.StopFamilyViolence.org

the people's voice for family peace

**************************************

 

 

 

-----Original Message-----
From: Ross A Wantland 
[mailto:]
 
Sent: Thursday, November 02, 2006 10:30 AM
To: 
;
 
;
;
 

Subject: Consent Yesterday, Consent Today, Consent Forever in MD

 

For those of you who haven't seen this yet...crap.

 

Ross

 

 

 

(From Feminist.com) 

 

 

MD Court Rules Consent Only Needed Prior to Sexual Act in Alleged Rape

Cases 

 

 

Feminist Daily News Wire

November 1, 2006

 

 

A three-judge panel of the Maryland Special Court of Appeals reinforced

the provision of Maryland's rape law that says a woman who gives consent

prior to intercourse cannot withdraw her legal consent during the act.

The decision came on Monday when the Court overturned a rape conviction.

During deliberation in the original trial, the jury had asked, "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 judge said that Maryland's law was unclear and would not provide a

definite answer. The Special Court of Appeals, however, disagreed with

the trial judge's interpretation of the law. Current Maryland rape law

is "not ambiguous," said the ruling; if a woman consents prior to sex,

she may not withdraw her consent during the act and accuse her partner

of rape if he continues the act.