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  1. GottaBeMe
    GottaBeMe April 17, 2008 at 4:54 pm |

    The people who are against this are interpreting it as “a woman can revoke consent at any time after sex and that makes the man guilty of rape”, and that is problematic. I agree with Meg Garvin from the National Crime Victim Institute, who said “It would have been stronger and more easily digestible for the public if it had been shorter,” she said. “A better answer would have been that a woman should be able to say no at any point in time and that we reject any common-law history to the contrary.”

    Basically, this means that the woman is allowed to chagne her mind and stop having sex. Just because sex has started doesn’t mean the guy gets to keep going as long as we wants regardless of what the woman wants or says.

    I think what is scaring people about this is the idea that a woman could give consent, and for example, two days later revoke consent.

    But the worries about men not being able to stop quickly are bullshit. Sorry, it’s not as if it’s an involuntary activity, like your heart beating. I think most women have had times where something during sex was painful and/or uncomfortable, and said stop, that hurts, and yes, the guy was able to stop right then. There was nothing forcing him to continue for another ten seconds, which would be a long time to endure forced or painful sexual activity.

  2. Hugo
    Hugo April 17, 2008 at 4:55 pm |

    Great news indeed. Hurrah for Maryland for joining my native California, which saw our state’s highest court reach a similar decision in 2003.

  3. jfpbookworm
    jfpbookworm April 17, 2008 at 4:59 pm |

    I think what is scaring people about this is the idea that a woman could give consent, and for example, two days later revoke consent.

    But that’s a bogeyman that has nothing to do with the case at hand.

  4. AnonymousCoward
    AnonymousCoward April 17, 2008 at 5:33 pm |

    This certainly wasn’t a case of “bad reflexes,” and it’s a bit astounding to me that someone could get to that conclusion unless they completely ignore the testimony of the complaining witness. Her testimony states that she was yelling at him to stop several times, as well as pushing against him to make him stop. Regardless, the argument over “bad reflexes” is a question of fact, not law. The law should be, and fortunately now is, that a revocation of consent means that a sex act carried out after that revocation is rape.

    There are definitely issues with whether or not there was consent in the first place, and sending this for a retrial seems like the right call for the court to make.

  5. Bloix
    Bloix April 17, 2008 at 5:47 pm |

    The key words in your discussion are “based on this description here.” There was another discription at the trial and you have ignored it. This case was very unusual in that the defendant took the stand. Yet you have silenced a 16-year old boy and condemned him as a rapist without letting him speak. For any other crime, you would certainly report the testimony of both parties, but for rape, you are so full of fear that you will not let your readers hear what the jury heard.

  6. Bloix
    Bloix April 17, 2008 at 5:54 pm |

    Anonymous Coward – there was no issue about whether there was consent in the first place. The jury was required to find that there was consent. The accusant did not testify that she refused consent. The defendant testified that she did consent. The only evidence, therefore, was that she did consent. (If she had told the prosecutor during a prep session that she had refused to consent, you can bet the prosecutor would have asked that question at trial.) The jury decides on the evidence, not on what they think happened based on conjecture and surmise. Rape is a horrible crime and the penalties are severe. That makes it even more important that juries consider rape charges dispassionately and convict only when the evidence overcomes the presumption of innocence.

  7. Nicholas
    Nicholas April 17, 2008 at 6:00 pm |

    As a (nearly) lifelong resident of Maryland, I’ll be the first to point out that we are one of the most common law-loving States in the Union. That being said, I find Judge Battaglia’s opinion (full disclosure: she also teaches at my law school) thoroughly well-reasoned and painstakingly walked-through in light of the arcane (misogynistic) language of some of the old common law opinions. And I also agree that the jury instructions were unclear and, as such, I agree with that the case needed to be remanded for a new trial. Relevant excerpts from the opinion include:

    Court disagreeing with defendant’s argument:
    “Baby’s argument falters, however, when he states that the essential element of penetration ‘[makes] clear that withdrawal of consent after penetration does not render the intercourse rape.’ His argument logically does not follow from the importance placed on proof of penetration as an element of the crime of rape, nor have we, in our search of the history of the English common law, found any authority that supports this conclusion.”

    Holding (on the question of the element of consent):
    “…we hold that a woman may withdraw consent for vaginal intercourse after penetration has occurred and that, after consent has been withdrawn, the continuation of vaginal intercourse by force or the threat of force may constitute rape. We iterate that force or the threat of force is, however, an essential element of the crime of rape…”

    The full opinion is available (in PDF format) at:

  8. Nicholas
    Nicholas April 17, 2008 at 6:01 pm |
  9. AnonymousCoward
    AnonymousCoward April 17, 2008 at 6:26 pm |

    Bloix: I’m going to ignore your comment at 6, because there’s very little (read: no) merit there. As for your argument in 7 that there was no issue of whether there was consent in the case, that just means the prosecutor did a bad job of handling the case.

    The key issue-within-the-issue is the ordering of events. The complaining witness testifies that he asked to have sex with her, she said nothing, and then he said, “Well, I don’t want to rape you,” after which she said he could so long as he stopped when she said. A zealous prosecutor should have argued that this was not consent; faced with the prospect of him forcing her to have sex, she chose to minimize the harm. On the other hand, the defendant testifies that he asked to have sex with her, she said he could so long as he stopped when she said, and he responded with, “Well, I don’t want to rape you.” Under this ordering, she consented, and he responded with a poorly-worded reassurance that he would respect her consent.

    There’s a legitimate question of fact there, and it should have been given to the jury.

  10. Mnemosyne
    Mnemosyne April 17, 2008 at 6:53 pm |

    I think most women have had times where something during sex was painful and/or uncomfortable, and said stop, that hurts, and yes, the guy was able to stop right then.

    Oddly enough, if I’m having sex with my husband, and we get in a weird position and I say, “Ow!” you know what happens?

    He stops. Immediately. Funny how that works in real life, as opposed to how things work inside the heads of guys who fantasize about rape, isn’t it?

  11. Evan
    Evan April 17, 2008 at 7:14 pm |

    This is great, although I agree that there’s the problem of further trials. I’m also not entirely certain how much we want to legally recognize consent when it’s been given in a situation like this (to the person who just held the “consenter” down while another person raped her).

    I think what is scaring people about this is the idea that a woman could give consent, and for example, two days later revoke consent.

    I know that somebody already said that this was a bogeyman, which I don’t doubt, but I am curious as to what the hell that could even mean. It’s not possible to revoke consent after the fact, just during or before. It is possible, however, to argue that somebody wasn’t a position to give consent in the first place, which is a different issue altogether (and one that seems to have been pushed aside in this case so that other victories can be pursued).

    Also, Bloix, I’m a little curious (but not too much, because I’ve already reached my quota of MRA propaganda for the year) as to what would “overcome[] the presumption of innocence” in a case like this. After all, the two men could easily just lie, and then you have two witnesses against one. Does that mean that in order to get a conviction, there have to be witnesses or signs of what normally qualifies as assault? That sort of reasoning doesn’t strike you as problematic?

  12. james
    james April 17, 2008 at 7:20 pm |

    I’m not sure about allowing an expert witness to stump the defence by giving testimony into why the victim’s behavior might have seemed inconsistent with someone who’d been raped. It seems to be that if you’re going to allow that you’ve got to allow the obverse in the interests of a fair trial. But would you be so happy with the defence calling an expert witness to stump the prosectution by giving testimony into why the victim’s behavior might have seemed consistent with someone who’d been raped, when it in fact wasn’t? I wouldn’t.

  13. Amanda Marcotte
    Amanda Marcotte April 17, 2008 at 7:31 pm |

    Well, and from what I understand, he was raping her from the get-go. His friend had already raped her, and he jumped on. Unfortunately, she “consented” to the second rape because the first had broken her will, and at this point she was hoping to get it over with. Then halfway through, she regained her will and told him to stop. It was on this technicality the whole thing spun out of control.

  14. Amanda Marcotte
    Amanda Marcotte April 17, 2008 at 7:33 pm |

    Nevermind, I see you have it covered. I feel like an ass now. *slinks away*

  15. micheyd
    micheyd April 17, 2008 at 8:58 pm |

    I’ve been with a partner and asked him to stop (he did), but I’ve also been in the opposite position (and I imagine a bunch of other women have too, actually), and stopped immediately. It’s really not that hard to do.

    10-15 seconds after they say “ow” or “no” to you is a long fuckin’ time in the context of sex! Anyone who’s overly concerned about getting their extra seconds in before stopping is basically revealing they’re a selfish asshole who could care less about their partner’s bodily autonomy or pleasure. And, yes, a rapist.

  16. Thomas, TSID
    Thomas, TSID April 17, 2008 at 8:58 pm |

    Bloix, didn’t the jury “silence” the rapist by rejecting his testimony? They believed her, disbelieved him, and applied their understanding of the law (as explained to them by the judge in the jury charges) to the facts that they, Jury, Finder of Fact, found. He had his day in court, but the evidence proved his guilt beyond a reasonable doubt. Then the appellate court threw it out on a pure question of law. Then the Maryland Supreme reversed the dismissal and remanded for a new trial.

    Now, another jury will hear from the victim, and probably from the defendant. And they’ll decide.

  17. AnonymousCoward
    AnonymousCoward April 17, 2008 at 9:12 pm |

    After reading Amanda’s comment, rereading the post, and taking a closer look at the decision, I think it’s even more important that the prosecutor argue that there was no consent in the first place. The focus on the issue of revocation of consent really takes away from the fact, admitted by the perpetrator, that the complaining witness had been raped by the defendant’s friend immediately prior to the event in question. Under those circumstances, I think it’d be hard for any rational jury to find that the complaining witness could have consented.

  18. Foxfire_j
    Foxfire_j April 17, 2008 at 10:18 pm |

    I am so glad that Maryland made this ruling, it is so important to rape victims. I am a survivor, and what happened to me is similar. *TRIGGER WARNING* I was in an abusive relationship and conscented to allow the guy I was seeing to perform a sexual act to me, not because I wanted to but becuase I was afraid. It hurt me so I told him to stop, but he didn’t-at least for another few minutes (not seconds, it was quite a while). Even pushing him off didn’t help. Unfortuantely for me, the state I was in at the time didn’t have such a ruling. The prosecutors ended up dropping my case because it was his word versus mine and I conscented at first, which they felt the defense would use against me. If a ruling like Maryland’s had been in place, he wouldn’t have got away with it and been able to hurt another woman (I found out a few months ago that he did almost the same thing to somone else). I really hope that other states follow suit, this is such a basic thing, like you said, but so needed.

  19. ACS
    ACS April 17, 2008 at 11:26 pm |

    The key words in your discussion are “based on this description here.” There was another discription at the trial and you have ignored it. This case was very unusual in that the defendant took the stand. Yet you have silenced a 16-year old boy and condemned him as a rapist without letting him speak. For any other crime, you would certainly report the testimony of both parties, but for rape, you are so full of fear that you will not let your readers hear what the jury heard.

    The court is bound by the facts the jury found. The jury found that there was consent under duress, and that even that limited consent was revoked. The “kid” was a rapist. At that point, we can argue how a 16 year old should be punished for rape, but at no point is a fucking blog obligated to take an ‘on the one hand / on the other hand’ approach to a case that’s already decided.

    – ACS

  20. sara no h.
    sara no h. April 18, 2008 at 12:53 am |

    I still really, really worry about the dudes who get up in arms over this. Seriously? As Mnemosyne and others have said – generally, when you’re having sex, if you or your partner wind up hurting or not in the mood, whatever – you stop. What does it say that they care so little about the potential folks they may or may not be sleeping with that their concern is more that they might be accused of being raped, as opposed to actually being rapists? That level of fucked-up-ness regarding their priorities – really worries me.

  21. Bruce
    Bruce April 18, 2008 at 5:41 am |

    I practice law in Maryland and am VERY surprised that this ruling went 7-0, though with two lengthy concurring opinions. Maryland’s constitution explicitly upholds the common law of England as it stood on Independence Day as the law of Maryland unless modified subsequently. Interesting that the decision went 4-3 on jurisprudence, one opinion not holding the prior case to be binding precedent and the other seeking to over turn a bad binding precedent.

    There was, or should have been, no question as to whether the conduct is illegal or jailable. To continue to touch someone in any manner after consent is withdrawn, period, is an assault (battery at common law, assault as codified here.) The question at hand was whether this assault also fit the elements of rape. I am certainly pleased to have guessed my Court’s answer incorrectly: a 7-0 reversal is far better than I had expected or hoped.

  22. CBrachyrhynchos
    CBrachyrhynchos April 18, 2008 at 7:49 am |

    And the court reiterated that rape requires the use or threat of force and coercion to begin with. So no, this wasn’t just a case of “she said stop, and he refused to stop right away.”

  23. D.N. Nation
    D.N. Nation April 18, 2008 at 10:56 am |

    To be frank, at the first signal of no I get, I’m out and finishing by myself. Not difficult.

  24. Mnemosyne
    Mnemosyne April 18, 2008 at 11:08 am |

    There was, or should have been, no question as to whether the conduct is illegal or jailable.

    So, in other words (and I am not a lawyer), the defense tried an argument and the court said, “Uh, yeah, nice try, but not on your life.”

    I remember reading about this case when it first went to trial and it’s pretty much the worst possible example the MRA’s could try to jump on as an example of “injustice.” When you have two guys holding a woman hostage, and one of them rapes the woman, there’s no way any judge or jury alive is going to believe that she freely consented to sex with the second guy while she was still being held against her will. Doesn’t even begin to pass the laugh test.

  25. Sam
    Sam April 18, 2008 at 11:47 am |

    5-10 seconds!?!?!! That seems ridiculous. This wasn’t 10-15 like some people above suggested. The implication from the article is that it was just a few seconds before he stopped. Guys get into sex and might not even hear her. This is ludicrous and trivializes real rape. Jill, you have let your bias against men blind your sense of justice here.

  26. Mnemosyne
    Mnemosyne April 18, 2008 at 12:36 pm |

    This is ludicrous and trivializes real rape.

    Holding a woman hostage is not “real rape”?

    Taking a turn with her after your friend has raped her is not “real rape”?

    Tell you what: next time you’re in a situation where you and your buddy have taken a woman to an isolated area where she can’t escape, and your buddy has just raped her, and you decide you want some of that too, and you say, “I don’t want to rape you,” and she nods and you start having sex with her, you have just raped her. No argument about it taking 5 or 10 or 20 seconds to stop after she starts trying to fight you off changes the fact that you have just raped her.

  27. abyss2hope
    abyss2hope April 18, 2008 at 1:15 pm |

    Sam (27), It’s amazing that those who trivialize real rape are so quick to demand that others don’t trivialize real rape. Baby helped restrain this woman, then waited outside the car while his friend raped her (the friend pled guilty to 2nd degree rape) and then he said, “My turn.”

    When the choice is consent or be raped there is no legal consent except in the delusions of those who want the freedom to be able to issue these types of threats with the full support of the law.

    Most of the time this threat of “consent or be raped” is clearly implied but unspoken or is said in a backhanded way so that the rapist can try to deny that he made this threat. The choice isn’t between consensual sex and rape, it is between less violent rape and more violent rape.

    This ruling is definitely bad news to those who rape the unconscious and who claim to have gotten initial consent. When their victims come to mid-rape and demand that the rapists stop and they don’t, these rapes become undeniable — at least in Maryland and 7 other states.

  28. Ismone
    Ismone April 18, 2008 at 1:29 pm |

    I recommend heading over to the comments thread at the article. Y’all are needed there. Iz

  29. Betty Boondoggle
    Betty Boondoggle April 18, 2008 at 1:46 pm |

    When you have two guys holding a woman hostage, and one of them rapes the woman, there’s no way any judge or jury alive is going to believe that she freely consented to sex with the second guy while she was still being held against her will. Doesn’t even begin to pass the laugh test

    Oh, but that just trivilizes Real Rape(tm)! And Real Rape is only something men get to decide, clearly. According to rape apologists of the “Sam” varitey, men are naught but brainless pigs who can’t be expected to care about anything but the holy O.

    And because of that we can’t have *WOMEN* defining rape. Because if they did, CLEARLY all men would be in jail!!!!11!11!!

    (and it’s *feminists* that hate men? Please explain that to me)

    So, no – holding a woman hostage, helping your friend rape her and then raping her yourself is not Real Rape(tm). Real rape(tm) is just what rapists and rape-apoloigsts ALWAYS define as narrowly as needed to exclude themselves.

    Funny, that.

  30. Ally
    Ally April 18, 2008 at 2:10 pm |

    Slightly OT but related – there is a piece here on Heather MacDonald’s campus rape “myth” and the unquestioning double standard she adopts.

  31. Indivisible
    Indivisible April 18, 2008 at 3:23 pm |

    Hi, this is my first post here but I’ve reading for a while.

    Well, I’ve posted at the article comments that yes, raping someone after you’ve helped your friend rape her and then not getting off of her when she tells you to is rape. I wonder how long until I get a vitriolic reply. I anticipate that I will be called a raving homosexual brainwashed by the feminist agenda.

  32. Puellasolis
    Puellasolis April 18, 2008 at 7:20 pm |

    Guys get into sex and might not even hear her.

    Whenever I hear/read things like this, I can’t help wondering how fast the speaker/writer would stop, pull out, and have his shorts on if his parents (or the girl’s parents) walked in on them. I suspect it would be on the order of milliseconds, which leads me to think that this whole “guys get into it and can’t stop, at least for a while” line is nonsense. *Ahem.*

  33. michael
    michael April 18, 2008 at 8:33 pm |

    I’ve got to disagree a little bit with Puellasolis. I’ve been so engrossed in having sex with my partner that it would have taken me longer than 10 seconds to notice a bomb going off outside. The only things that occupied my focus were what I was doing, and what my partner was doing. If she said stop, thats it. If you’re having sex and not noticing anything that your partner does, you are, at best, just using them as a prop for masturbation.

    I can understand some of the knee jerk “what about the menz” stuff here, since the first reaction I had to the bare bones details of this story “She said stop, and he didn’t for 5-10 seconds and they’re calling that rape” was “holy shit, I’ve done something like that”. Difference being, in my case what happened when my partner said “ouch, stop” was that I immediately ceased with the thrusting, then attempted to withdraw gently, so as not to cause more “ouch”.

  34. Marle
    Marle April 18, 2008 at 9:20 pm |

    5 seconds doesn’t sound like a long time, but it’s a huge amount of time when it’s painful sex. Especially if you don’t know when it’s going to stop because your partner isn’t fucking listening to you. Guys, if you “don’t hear” her or “can’t stop”, then you’re a sadistic bastard. It’s not like women whisper *stop* as quietly as we can to say “Gotcha!” later. It’s not a game. It’s rape.

  35. Friday links « zinepersephone
    Friday links « zinepersephone April 19, 2008 at 3:38 am |

    [...] are we allowed to invoke the “n” word in bed? Feministe had it first. Pam’s House Blend and Feministing quickly [...]

  36. Ismone
    Ismone April 19, 2008 at 4:13 pm |

    Ally, That was interesting, but it bugs me that she (and her commenters) dismiss the 1 in 4 number out of hand, and claim that when intoxicated women say they were raped, it is just beer goggles + regret. Being so intoxicated as to be beyond the point of consent is rape. Which can happen to men as well, but which is physiologically difficult because it is hard to em, keep hard if they are intoxicated beyond the point of consent.

  37. ripley
    ripley April 19, 2008 at 4:22 pm |

    amen, Cara. true true,

    I remember with a sexual partner that I noticed his tendency to kind of “shut off” mentally during sex, and even though I wanted to continue having sex, I was creeped out, because I wondered if he would stop if I told him to. I also wondered if it mattered who I was, ultimately, because it felt like he didn’t even see me. I tried to work it out with him, tried to get him to look me in the eye, to respond to me when I said something.

    let me tell you, it’s a horrible feeling when someone snaps angrily at you IN THE MIDDLE OF HAVING SEX WITH YOU for “interrupting” whatever was going on in his head (WHILE HE WAS HAVING SEX WITH YOU).

    and this guy was basically a nice guy, and didn’t have awful attitude towards women generally. He had just internalized mainstream attitudes about sex that let men off the hook by assuming they “cannot stop” or “cannot think” while they are having sex. let’s not do that any more, okay?

  38. SarahMC
    SarahMC April 20, 2008 at 11:04 pm |

    If you’re so “into sex” that you don’t hear your partner protest or tell you to stop for a few minutes, you are using your partner as a fucktoy and probably suck at sex.

  39. Janet
    Janet April 22, 2008 at 11:09 am |

    The testimony says that the SECOND man (A MINOR FOR GOD’S SAKE, TO A COLLEGE WOMAN STUDENT!) asked for consent so he would not “rape” her, she consented. Then during intercourse of the SECOND man, she said stop, he stopped after 5 to 10 seconds, FOR THIS YOU WILL PUT TWO MEN IN JAIL? YOU SHOULD BE ASHAMED OF YOURSELVES!!!! ONE MAN WILL SERVE TEN YEARS FOR TEN SECONDS OF NON CONSENSUAL INTERCOURSE!!! THIS MAY MAKE A SERIAL RAPIST YOU STUPID IDIOTS!!!! YOU LESBIANS WANT OPEN SEX WHENEVER BUT HATE MEN SO MUCH, IT’S SICKENING.

    THIS FROM THE STORY COVERING IT:

    http://www.baltimoresun.com/news/local/crime/bal-te.md.rape17apr17,0,5827288,full.story

    The case stems from a December 2003 incident in which he and a friend, both high school students, had sex with a community college student in an isolated school parking lot.

    Baby, then 16, and Michael Wilson, 15, groped the woman and made sexual advances to her, according to police. First, Wilson had sex with the woman while Baby was outside the car. Then, police said, Baby told her it was his turn.

    “[So] are you going to let me hit it?” he said, according to police. “I don’t want to rape you.”

    The victim testified in Montgomery County court that she agreed to sex “as long as he stops when I tell him to.” As he began, she told him to stop because he was hurting her, but he kept going for five or 10 seconds, she said.

    Wilson pleaded guilty to second-degree rape and was sentenced to 18 months in prison. Baby denied any wrongdoing but was convicted of first-degree rape and other crimes and sentenced to 15 years in prison, with all but five suspended.

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