As a general proposition, rape means sexual intercourse against the will of the complaining witness, accomplished by force or the threat of force.
But what happens if consent is given, then withdrawn? Imagine a woman initially granting consent, but then, during the act, withdrawing it. May the woman later be heard to complain of rape?
In Maryland, it may be that the answer is ‘no’. In the rather creepily titled opinion Baby v. State, the Maryland Court of Special Appeals upheld an older Maryland decision which says:
The opinion acknowledges the vast weight of decisions in other states that cut the other way, but notes that until the law is changed in Maryland, that’s what it says.
I applaud the court. They made a very unpopular decision here, correctly noting that it was not up to them to change the law. I don’t agree with the idea that initial consent means no rape is possible… but I agree that the intermediate appellate court is not the right place to change the law.
It’s difficult to see how vaginal intercourse after consent has been withdrawn doesn’t qualify. I would be interested to see the argument of the court, or if Bricker would care to offer his argument, I would be interested in that.
Yeah, I agree (although IANAL so my opinion means nothing in terms of jurisprudence). It would be rather silly to argue that withdrawing consent after a sex act is over means that the act retroactively becomes rape.
But once consent is withdrawn, IMO, all ongoing sex acts have to stop. To argue that, say, a woman who is crying and screaming “No! No! Stop, it hurts! Let me go! Please, let me go!” while a guy pounds away on her isn’t being raped, just because she initially consented to the intercourse before it actually started, strikes me as something a whole lot worse than silly.
I just have to disagree with this. Maryland law and the Maryland courts can say what they want, and the law will be what it is, but I’m firmly of the belief that sex against a person’s will is rape. One might be willing at the outset and then become unwilling for any number of reasons. If someone persists in having sex with a person once that person has expressed unwillingness, it’s rape in my book, and I’m somewhat disgusted that anyone could think otherwise. Which I don’t mean as a personal dig at AHunter3, a poster whom I generally respect – it’s just a statement of my own reaction to the thought that this could be a matter of debate. If someone says, “Stop!” and the other person doesn’t stop, how is that not rape? It seems to me every bit as violating as if the person had said “Stop” in the first place and the other person went ahead anyway. In either case, someone is doing something to you to which you do not consent.
Anyway, that’s my take on it. I can understand those who disagree with the court’s ruling but believe the court was procedurally and constitutionally correct in following precedent and leaving the changing of the law up to the legislature. I do get that. I just think the legislature should act in a hurry to change the law, because it is obviously (IMO) horribly wrong if it is open to this construction. Thinking, however, that the act of continuing to have sex with someone who has withdrawn consent is somehow not rape — that I find appalling and scary.
Ok having read the opinion the argument is that under common law the injury of rape comes from the “deflowering” of the women. In other words, the women is injured by the first penetration. If she had consented to that, then she is not injured by the subsequent sex, and therefore no crime, under common law, had occurred. Interesting logic there, but ultimately the definition of rape under common law is irrelevant. Maryland clearly defines rape as:
With vaginal intercourse defined as:
The fact that rape, under common law, was merely the first penetration is irrelevant. That is not how Maryland defines rape.
Well I read the opinion and it didn’t exactly uphold the law, nor did they say this was a matter of the legislature changing the law. What it amounts to is this:
There was a trial. The jury asked the judge whether its rape if she says no during sex. The judge refused to answer for various reasons. The appellate court said he should have answered as per Maryland case law, which amounts to one decision, which they think says “no it’s not rape.” So they threw out the conviction.
They didn’t affirm the findings of that decision, (and in fact, seemed to be leaning that they wouldn’t find that way themselves). They basically just said that the judge should have told the jury about it.
If someone agrees to have sex and intercourse begins, the woman changes her mind and the man stops, that’s not rape
If someone agrees to have sex and intercourse begins, the woman changes her mind and the man doesn’t stop, that’s rape.
To say it’s rape either way is like letting someone borrow your car, they get in it and drive off, you call and report the car stolen. Now, if you call them and say, “come back because I’ve changed my mind, you can’t drive it,” and they don’t come back, then report it stolen. Give them a chance at least.
I think there are a number of problems with this law – withdrawing consent is the least of them. treis says the law clearly defines rape as “[engaging] in vaginal intercourse with another by force, or the threat of force, without the consent of the other,” but neglects to consider the force of that and. The way I read it, part (1) is not enough – for it to be rape (at least in the first degree), the perpetrator must also either use or show a weapon, suffocate, strangle or disfigure the victim, threaten the victim or an individual known to the victim with imminent death, suffocation, etc., be aided by somebody else, or commit the rape in connection with a burglary. Not to mention that for rape in the first degree to happen, apparently there has to be a vagina involved. Nobody can be raped anally? This looks like a total mess to me.