In Maryland, men experience the "real harm" of rape

Another look at the Maryland Court of Special Appeals decision that once consent is given, rape cannot occur.


Tracy Clark-Flory
November 28, 2006 6:15AM (UTC)

Today's Washington Post revisited the infamous Maryland rape ruling we covered last month, with an opinion piece skewering the appellate court conclusion that once a woman consents to sex -- no matter what transpires in the encounter -- she cannot legally withdraw that consent. We thought the ruling seemed pretty archaic and scary initially (though some readers disagreed), but the Post notes some chilling stuff we missed the first time around.

The case that prompted the court ruling is undoubtedly messy. The plaintiff in the case was driving two guys in her car; one raped her (and ultimately pleaded guilty to the crime). Allegedly, the other passenger then took his "turn" but said he didn't want to rape the plaintiff, who felt that she couldn't refuse him, and consented to have sex with him provided he stop when she asked him to. They had sex, and at one point she did ask him to stop -- and he did, after "about five or so seconds," the plaintiff has said.

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The second defendant, Maouloud Baby, "was convicted of first-degree rape and sentenced to five years in prison," the Post reports, acknowledging that "a new trial for Mr. Baby seems warranted."

Trouble is, the Maryland Court of Special Appeals bypassed the state's basic rape law -- which states that "a person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person" -- and relied on a more obscure precedent. The court called upon a 1980 ruling by the Court of Appeals, which found that if the woman "consents prior to penetration and withdraws the consent following penetration, there is no rape," even though that ruling related to a case in which a woman refused sex but gave consent after the fact. What's more, the 1980 ruling was based on common law, which "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 Post reports. In other words, rape is not a violation of a woman's rights, but a devaluing of male property. Not exactly consistent with the values of the United States in the 21st century.

The Post piece notes that the appellate court decision is also "out of line with other states that have considered the question." In fact, "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."

We have no beef with Maryland ordinarily; the state gets cool points for being home to HBO's popular crime-opera "The Wire," and boasts the most educated city in the U.S. (that'd be Bethesda, according to the federal government's interpretation of 2000 census data). But legal precedents that sever a woman's rights as soon as she says yes to sex need another look. As the Post editorial concludes, "If this is a correct interpretation of the law, the law should be changed."


Tracy Clark-Flory

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