Court Says Consensual Sex Can't Become Rape

By Ernesto Londoño
Washington Post Staff Writer
Thursday, November 2, 2006

While deliberating on a rape case in December 2004, a Montgomery County jury asked the judge the following question: If a woman agrees to have sex, but while having intercourse changes her mind and withdraws consent, is she being raped if the man doesn't stop?

Circuit Court Judge Louise G. Scrivener told jurors they would need to determine that themselves, relying on the instructions they had been given. The jury returned a guilty verdict.

The Court of Special Appeals of Maryland this week overturned the conviction -- kicking the case back to Circuit Court -- and delved into the thorny legal issue of revocation of consent in rape cases. In a 51-page opinion, it faulted Scrivener for not telling jurors that under Maryland law the scenario described does not constitute rape.

The appeals court decision could lead to a new trial, or possibly a dismissal of charges, for Maouloud Baby, who was 16 at the time of the incident and is now 19. He is serving a five-year sentence.

"He's lost these formative years of his life," said his attorney, James F. Shalleck. "You don't get your time back from the court."

Prosecutors said the conviction was the right outcome, and the attorney general's office intends to appeal this week's decision. If the state's highest court agrees to hear the case, it could set precedent on a legal question that hasn't been seriously broached by Maryland courts since 1980.

"We may have lost the battle, but we might ultimately win the war," said Assistant State's Attorney Alex Foster.

The case stems from an encounter among teenagers Dec. 13, 2003. Baby and a classmate, Michael Wilson, then students at Watkins Mill High School in Montgomery Village, drove to a residential area with an 18-year-old woman who attended Montgomery College. Baby and Wilson, who was 15, knew the woman socially. She is not being identified because The Washington Post generally does not identify victims of sexual crimes.

The appeals court decision provides this account of the case:

After the woman parked the car, Baby and Wilson asked her to sit between them in the back seat. She did. They began fondling her and making other sexual advances. Baby got out of the car at one point, and Wilson had intercourse with her. Then Baby got back in and had a brief conversation with the woman.

"After that, we sat there for a couple of seconds, and he was like, 'So are you going to let me hit it?' And I didn't really say anything, and he was like, 'I don't want to rape you,' " the woman testified.

The prosecutor asked whether she responded to that statement.

"Yes," the woman testified. "I said that as long as he stops when I tell him to," he could do it.

The woman testified that she didn't feel that she could turn him down.

"Something just clicked off, and I just did whatever they said," she testified.

Baby began to have sex with her, but the woman said she felt pain and indicated that she wanted him to stop. She said he stopped "five or so seconds" after she made the request. Baby testified that the sex was consensual, that he explicitly told her "I'm not going to rape you" and that he stopped as soon as she expressed discomfort.

The trio returned to a McDonald's restaurant in Montgomery Village, where they had been earlier. Before departing, the woman and Wilson hugged, and she gave Baby her phone number. Hours later, the woman told a friend's mother what had happened -- a delayed reaction that prosecutors ascribed to "rape trauma syndrome."

Baby and Wilson were charged as adults with first-degree rape, among other charges. Wilson pleaded guilty to second-degree rape and was sentenced to 18 months. Baby's first trial before a jury of 11 men and one woman ended in a mistrial. In his second trial, Baby was convicted of first-degree rape, first-degree sexual offense and third-degree sexual offense.

In its decision, the appeals court notes that Maryland, like North Carolina, has held on to the legal view that a woman cannot be raped after she has agreed to have sex. In those cases, defendants can be charged with sexual assault.

Some other states have changed this area of the law through legislative initiatives and precedent-setting cases that have established that a woman can be raped even if she initially consents to have sex.

Foster, who has prosecuted dozens of rape cases, said he hopes Maryland will join them.

"There are a lot of scenarios where we really need to think this through," Foster said. For example, he said, a woman could agree to have sex but later object if she learns that the man is not wearing a condom or has a sexually transmitted disease.