Rape Is Rape

Monday, November 27, 2006

IS IT RAPE if a woman agrees to have sex, then changes her mind after the act has begun and tells the man to stop? Not in Maryland, no matter how clear it is that the woman has withdrawn her consent. According to a ruling last month by the Maryland Court of Special Appeals, the state's intermediate appellate court, forcing a woman to continue to have sex against her will is not rape under common law and state court precedents. If this is a correct interpretation of the law, the law should be changed.

Perhaps the facts of the case produced this repugnant result. An 18-year-old Montgomery College student gave a ride to Maouloud Baby, then 16, and his friend. The friend -- who later pleaded guilty to rape in the incident -- had sex with the young woman in the back seat of her car. Then Mr. Baby said it was his turn. "He was like, 'I don't want to rape you,' " the student testified. She said she felt as if she couldn't refuse and agreed to have intercourse "as long as he stops when I tell him to." They began to have sex, she pushed him away and told him to stop, and, she testified, after "about five or so seconds," he did. Mr. Baby was convicted of first-degree rape and sentenced to five years in prison.

This isn't the strongest set of facts for a rape conviction, and a new trial for Mr. Baby seems warranted. But what's troubling is that, in granting the new trial, the court found that once consent is given and penetration occurs, no set of facts, however egregious, could produce a rape conviction. The court said it was bound by a 1980 ruling in which the Court of Appeals found that "ordinarily if [the woman] consents prior to penetration and withdraws the consent following penetration, there is no rape" -- though that case involved the opposite situation, where the woman refused to agree to have sex but gave consent afterward.

Its conclusion, the court said, was further required by the common law understanding of rape, under which the crime is viewed as an infringement on the property rights of the woman's husband or father. The common law, the court said, "views the initial 'de-flowering' of a woman as the real harm or insult . . . after this initial infringement upon [her husband or father's] interest in a woman's sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done."

The real damage is done by this ruling, which promotes an offensively archaic view of women and is out of line with other states that have considered the question. Only one state court (North Carolina) has agreed with Maryland, seven state courts have found to the contrary, and Illinois has passed a statute making clear that consent can be withdrawn. The Court of Appeals or the legislature should overturn this decision.

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