Md. Court Rules Women Can Withdraw Sexual Consent
Wednesday, April 16, 2008; 5:43 PM
ANNAPOLIS, Md. -- Women can say "no" at any time during intercourse, and a man can be convicted of rape if he doesn't stop, Maryland highest court ruled Wednesday.
In the case of a man convicted of rape in 2004, the judges decided a woman can withdraw consent at any time, even after agreeing to sex.
"The crime of first-degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration," the Court of Appeals wrote.
The court ordered a new trial for Maouloud Baby, who was convicted of raping a woman in a car in 2003. The woman had just had sex with another man, and Baby asked the man if he could "hit that" also.
Baby testified that the woman agreed, as long as Baby would stop when she told him to. The woman testified that Baby continued having sex with her for five to 10 seconds after she asked him to stop.
"I said, 'Stop,' and that's when he kept pushing it in, and I was pushing his knees to get off me," she testified.
Baby was convicted in 2004 after a Montgomery County jury asked the judge whether sex that begins consensually but continues after the woman tells the man to stop constitutes rape. The judge replied that was "a question that you, as a jury, must decide."
Baby challenged his conviction, which was overturned by Maryland's second-highest court. The Court of Appeals remanded the case back to a new trial, clarifying that a woman may withdraw consent at any time during sex.
"It's important for women's autonomy," said Lisae Jordan, legal director for the Maryland Coalition Against Sexual Assault, which filed a brief in favor of the "no-at-any-time" interpretation.
Tracy Brown, executive director of the Women's Law Center of Maryland, said that before Wednesday's ruling, it was unclear whether a man refusing requests to stop during sex could be convicted of rape.
Brown said Maryland's decision means the law will match what people already believe -- that a woman's right to decide whether she wants sex does not end once sex begins.
"The decision is consistent with cultural standards," Brown said.
But an Illinois lawyer known for defending men, usually in custody battles, said the "withdrawn consent" standard can make it almost impossible to defend a man in rape proceedings. Jeffery Leving of Chicago said that's because the best defense in he-said-she-said situations is the lack of injury in the alleged victim.
"The only evidence in a rape case that's truly objective is personal injury, and now that's no longer the case in Maryland," Leving said. "It just seems like it's very, very unfair."
In the decision, judges said that the trial judge was right to allow testimony from an expert in what's called "rape-trauma syndrome." The expert explained to jurors why the victim's behavior might have seemed inconsistent with someone who'd been raped. Baby argued that testimony wrongly swayed the jury and should not have been allowed.
The decision means Baby faces another trial in Montgomery County. Judges wrote that current courts should not rely on 200-year-old legal standards that "initial penetration completes the act of intercourse."
"Post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape," the court concluded.