In Reversal of '06 Decision, Rape Can Be Charged if Consent Is Withdrawn

By Dan Morse
Washington Post Staff Writer
Thursday, April 17, 2008

Maryland's highest court said yesterday that a woman who agrees to have sex can change her mind after intercourse has begun, and that a man who refuses to stop can be charged with rape.

The holding by the Court of Appeals overturned a ruling by the state's lower appeals court, which in 2006 cited court precedent in finding that consent, once given, cannot be withdrawn.

The 2006 decision, which drew wide attention, "was certainly startling," said Tracy Brown, the executive director of the Women's Law Center in Towson.

Brown welcomed yesterday's reversal, which, she said, "reflects current standards regarding the rights of women for sexual self-determination and the right for women to withdraw consent."

Despite its holding on the issue of consent, a majority of the court overturned first-degree rape and other convictions that Montgomery County prosecutors secured in 2004 against Maouloud Baby.

The case centered on a 2003 encounter in which Baby, then 16, was accused of fondling an 18-year-old and holding her arms while a friend of his sexually assaulted her in a parked car. Later, the woman testified, Baby told her, "It's my turn now."

"He was, like, 'So are you going to let me hit it?' " the woman said. "And I didn't really say anything, and he was, like, 'I don't want to rape you.' "

She said she told Baby they could have sex as long as he agreed to stop if she told him to. Soon, she said, she told him to stop. He continued for "five or so seconds" after she made the request, she testified.

The defense argued that Baby was not present when his friend had sex with the woman, and that she and Baby had consensual sex.

During deliberations, the jury twice asked Circuit Court Judge Louise G. Scrivener whether a rape has occurred if a woman who agrees to have sex changes her mind after intercourse has begun. Scrivener replied that that was "a question that you, as a jury, must decide."

The Court of Appeals, like the lower appeals court, held that the judge erred in not answering the jury's question -- but the appeals courts took opposite positions on what the judge's response should have been. The Court of Appeals held yesterday that the judge should have answered that rape can occur after someone initially consents to sex.

James F. Shalleck, Baby's attorney, said that if prosecutors retry the case, he will again argue that the sex was consensual. "When told to stop, my client, as fast as humanly possible, stopped," Shalleck said.

Senior Assistant State's Attorney Alex Foster, who prosecuted the Baby case, said the holding brings Maryland in line with the "overwhelming majority" of states that have considered the issue of whether consent can be withdrawn.

"We lost the battle," he said, referring to the overturning of the convictions, "but I think we won a war."

Montgomery County State's Attorney John McCarthy said that, although no decision has been made, "we are in a great position to retry this case."

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