I realize analogies are always fraught with problems, but I’m genuinely curious on this score. Can the lawyers here answer me a question?
If I ask my pal Fred to give me a home tattoo, and he agrees and starts in with the needle and ink, and gets about a third of the way through and I decide it hurts too much or I don’t like how it looks, and I tell him to stop, and then he holds me down until he’s finished with his design, is he in the clear because I consented initially? Or has he committed assault or some other crime or misdemeanor?
The second part deals simply with whether or not it’s first degree rape. Second degree rape is:
I probably should have just quoted this one.
Anal rape (and other sexual crimes) fall under the crime of “Sexual Offense”, which is basically the same as the rape law, but for sex acts not including vaginal intercourse.
Thanks for filling that in for me, treis – I feel a bit better about the Maryland laws now. Sorry to make you do my digging for me; I could probably have checked that all out myself and given my Google-fu a little workout. Guess Friday night laziness overtook me. I do appreciate your taking up my slack.
Still hoping to learn about the law’s perspective on my persistent tattoo-artist pal.
Not to cause a pile on, but isn’t it a matter of degree?
Situation One: woman agrees, sex starts, part way through she starts screaming “that hurts, that hurts”, struggles to get away. Many holds her down and completes the act. …yep this is rape
Situation Two: Woman agrees, sex starts, part way through she says “yep okay, I had my fun, you stop now” no struggling or screaming. Man continues for another few thrusts (or minutes), not forcefully or having to hold her down. Is (or should this be) rape? Not so clear.
To me I would say no, for rape to occur, there needs to be some element (explicit or implicit) of force or coercian. If this is not present - then no rape.
A case of “I didn’t want it” is very different from a case of “he forced me to do it”
A slight analogy - you eat food you don’t like in order to be polite, is this the same as having a tube forced down your throat and the food pumped in?
This is an activity that usually happens with no witnesses, so you get into ‘She said; he said’. No proof. And in those circumstances you cannot convict.
And how much leeway is the man allowed? How much time must pass so his otherwise occupied brain can process the message? Suppose he ejaculates one second after the woman says, “No.” Is that still rape? What about two seconds? Three? What if the man is educationally subnormal? What if he’s deaf?
If a pair willingly start to have sex, then I don’t think you can later accuse one of them with rape. But a charge of assault could be entirely appropriate.
I can’t figure out how to search for it, but wasn’t there a thread a while back about a teenager with his arm in cast (or something) who was convicted of rape because it took him some ten seconds or so to stop after the girl said no?
Was the intermediate able to issue a decision contrary to the express holding in a prior case decided by the Maryland Court of Appeals ( = the Maryland state supreme court)?
Answer by the lower court: No.
So, there are two possible ways to deal with this: a) appeal the decision to the Maryland Court of Appeals and attempt to get them to reverse their prior ruling in Battle (possible, given that that ruling is not based upon terms of the statute but upon that court’s decision of how the statute should be interpreted), or b) get the Maryland legislature to revise the rape statute to make the issue of consent clear.
Every other part of the discussion here is not germane to the issue Rick raised in the OP. :dubious:
IIRC, this is the law in the majority of states - there is a requirement both for lack of consent and for force. I think it is 48 states - excluding New Jersey and Wisconsin (I am really not certain on the latter here). NJ has defined the act of penetration itself as being sufficient force to maintain a charge of rape, so, in effect, there is only the requirement of lack of consent.
Coercion does not always mean rape in the courts either. A guardian threatening to have a 14 year old sent back to juvie if she did not consent to sex (Pennsylvania) or a high school principal telling a 17 year old he would prevent her graduating if she did not sleep with him (Montana) did not commit rape under their states’ laws.
In states where penetration is necessary to establish rape, would it matter if penetration has already happened before consent was withdrawn?
IOW, she consented to the penetration. Thus rape cannot be established, since penetration without consent is a necessary and sufficient condition of rape.
It would still be a lesser/other form or sexual assault, certainly, but rape in the narrowest sense of the term?
As far as I recall (from writing a piece on this a couple of years back) penetration is considered as an ongoing process. So if consent is withdrawn, and the withdrawal does not happen, then a rape would be seen as having occured. I have no cite for this whatsoever, sorry.
Hey! I get out and have fun once a year, right as scheduled on the calendar. See, here it is, May 12, 5:30 PM. “Have fun.”
Comes right before the appointment on May 12, at 5:45 to “drink massive quantities and forget life.”
A further question - there is a point in intercourse where it is (in my experience) really not possible to stop. Partly because my ears are more or less out of circuit, so I am not listening to much of anything, but also because most of my brain has put pretty much everything else on the back burner as well. It is just a few seconds, from the point at which I realize It Is About To Happen thru the endpoint.
I honestly don’t think it would be an excuse to say that I am not responsible during that period of time. No one has ever withdrawn consent at that moment, but there have been occasions when things like “ouch - you’re on my hair” or “I have a cramp in my foot” went unheard. And I can imagine a scenario where the woman would realize that things were about to reach fruition, and she hadn’t taken her pill that morning or put in the diaphragm.
Does the law recognize that moment? Even in theory?
Interesting. There is an English case whereby people were acquitted of rape in the following situation: man goes to pub, drinks with a bunch of guys; tells strangers his wife gets off on having a bunch of guys come in and have “rough sex” with her; man tells guys that part of her schtick is to fight back and say no, etc; guys go back with men; wife of course knows nothing about this and is asleep; guys have sex with wife; wife fights back; guys charged with rape; guys acquitted of rape, (on appeal I seem to remember). Now you can certainly argue the reasonableness of their belief she was consenting here, but that’s the fact pattern…
The point being that rape needs a mens rea. In your situation, I imagine your defense would be that you had no way of knowing she was withdrawing consent. As such you could not form, even instantaneously, the necessary criminal mind set to be committing rape. You were mistaken as to her continuing consent, but your mistake was a reasonable one. It would be a tough argument to make, and to be honest I have never noticed a point during sex where I couldn’t stop, but at that point I doubt I have ever considered “what would happen if she said stop.” I tend to be thinking about baseball and sumo wrestlers and Margaret Thatcher speeches by then…