Thursday, April 17, 2008

Maryland high court: yes-then-no still means no

In a lengthy decision issued last week, Maryland's highest court held that a rape is committed where the defendant persists with sexual intercourse after the other person withdraws their consent. You would think this was obvious, but a lower court had accepted as binding the high court's statement in 1980 that "ordinarily if [a woman] consents prior to penetration and withdraws the consent following penetration, there is no rape." The high court has now clearly stated 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a woman may withdraw consent for vaginal intercourse after penetration has occurred and that, after consent has been withdrawn, the continuation of vaginal intercourse by force or the threat of force may constitute rape.
The case has been widely discussed on blogs such as Feministing and Feministe.

The majority opinion surveyed the history of the definition of rape and common law, and noted that way back in the day, the crime of rape was defined in terms of penetration because the law was concerned primarily with virginity and the value of women as, essentially, property. It also noted that even as the law began to discard some of its sexism, courts stated that the crime of rape was "complete upon penetration" - the point being to avoid acquitting a defendant simply because he didn't continue to ejaculation. Since these decisions were aimed at avoiding absurd results, they shouldn't now be interpreted to create the absurd result that a defendant escapes punishment if he engages in some consensual sexual activity and then forces further sexual activity upon another. Thus:
We conclude that 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. We also hold, however, that the trial court erred in failing to sufficiently address the jury’s questions on post-penetration withdrawal of consent, and such error was not harmless beyond a reasonable doubt.
Although it reversed the defendant's conviction, the court also addressed the issue of admitting expert evidence of "rape trauma syndrome." The court stated that before considering whether it could be admitted for any purpose at trial, lower courts should apply a standard test to determine whether the syndrome has broadly accepted scientific validity.

An interesting side issue in this case is what constitutes a "holding" or "dicta" of the court. The majority discussed this issue at length and concluded the 1980 statement about withdrawal of consent was non-binding "dicta." The dissenting judges argued that the offending statement constituted a clear "holding" and should be explicitly, prospectively overruled. All members of the court agreed that the court's former statement was wrong.

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