Appeal Court Rules Women Can't Say No

[donsu]

http://www.buzzflash.com/articles/mailbag/246

-snip-

People forget that who we put into office also determines how our judicial system is run. The Republicans have been shoving their conservative federal judges down our throat and this is the result. I just read an article titled Court: Woman Can't Say No After Start Of Sex (http://www.thewbalchannel.com/news/10198629/detail.html) and I am shocked. This is so wrong, so scary, so anti-women I could just scream. I really want to know the makeup of these judges; what party, what age, and what gender. I want to know who would think this is right (outside of the Taliban). They quote common law, so, a tenet of common-law used to be that women were property, chattel. It's like women have to be punished for even considering sex. And so they take us back to the Middle Ages. Next they will rule that wearing the wrong clothes means you can be molested or raped, & women will have to wear bursas to be safe. We need to get some balance back on the courts by our votes. Now.

An appellate court said Maryland's rape law is clear -- no doesn't mean no when it follows a yes and sex has started. What if you'd been asleep or drinking too much to know what you were saying yes to? What if you've been intimidated, coerced or threatened into the first yes? What if you're young & too scared to say no right away? What if you said yes to one thing and then he won't quit? What if, after you said yes, he refused to wear a condom?

So, it doesn't matter if you start getting sick, or he starts using force, or it gets painful, or he refuses to use a condom, or ANYTHING, you have to give it up. No matter what. And he now has the right to get you pregnant or give you AIDS or other diseases even if you say stop.

Do we not have the right to determine what happens to our very bodies at any time? When did one yes mean someone else then has the right to do whatever they want with our bodies until they are through? Another person has the right to give you diseases or make you pregnant against your will? Another person has the right to use you after you say no, after you say stop?? Because that is what it is. This is shameful.

The site has a survey, so read the article & take it. Maybe after the Democrats take back the states and Washington, we can pass laws that sustain a person's right to protect their own body. And get the misogynist throwbacks out of the judicial system. For this could be you or me, or any of our loved ones who will not be allowed to say no.

B. L. McMillan
Holly Hill, Florida

-snip-
--------------------------------------


no - don't - stop

are words to be obeyed

is it all men on the Appeal Court?

the House and Senate should be equally divided between men and women. so should the Court system.

[TahitiNut]

1. So, if she falls asleep during intercourse after saying 'yes', that's rape too?

:eyes:

[xxqqqzme]

3. Falls asleep during?!?!

And you have experience w/ this?

[TahitiNut]

18. Some folks just can't avoid making it personal, huh?

:eyes:

[sandnsea]

22. And you didn't??

Personal - absurd - whatever. Your dismissiveness of rape is much more insulting than any jab at your manhood - to which you kicked the door wide open to in the first place. 'Your Honor - she couldn't possibly have said no - she was asleep!!' Yeah, that's a defense. :eyes:

[TahitiNut]

27. Nope. Reading comprehension doesn't seem to be your forte.

:shrug: Yes ... THAT was personal.

Here's a clue, fresh off the clue train: Neither YOUR characterization (a total strawman) nor YOUR emotional reaction to a post (which you misinterpret) confers upon you the right to point your finger of blame at others.

Too bad you don't get it. :eyes:

[ThomCat]

39. Some people claim to be progressive

but always seem to end up defending men's freedom to rape without consequence. :eyes:

It makes me very, very glad that there are some people here that I will never meet in person.

[kiahzero]

42. Wondered how long it would take that strawman to come out. (n/t)

[ThomCat]

45. If certain people only ever post defenses

of the men as if the men are innocent and persecuted, and repeatedly ignore the fact that women really do get raped, then it's not a strawman.

It's sick that in a situation where less than 1% of rapists get convicted, the rare 1 innocent man out of a 1000 who gets accused is the only concern that some people here have. What about some concern for the 99% of women who get raped and never see the rapist convicted?

You can quote the law all you want, but your focus is purely for the defense as if there is no right to prosecute. That's just sick.

[kiahzero]

48. Huh?

You can quote the law all you want, but your focus is purely for the defense as if there is no right to prosecute. That's just sick.

I'm quoting the law because the majority of the people posting on this thread are completely wrong about the law. Should I let their ignorance persist, just because they're erring on the side of the woman rather than the man? Should we just forget about due process and fire up a lynch mob, because it's a rape case?

I'll say it again, because apparently the first few times weren't enough for some people: I don't support the Maryland law. However, the fact remains that there was nothing this judge could do to overturn a higher court's precedence. I'm not sure how that turned into the idea that "the rare 1 innocent man out of a 1000 who gets accused is the only concern."

[kiahzero]

24. I do.

What can I say, I was tired. I had really good dreams, though.

:shrug:

[ItNerd4life]

79. LOL! Damn that was funny.

Falling asleep during? Just tickled my funny bone.

[renate]

4. well, besides the overtones of necrophila...

Falling asleep during intercourse isn't the same as saying "no." So I don't think that's what this issue is about.

The idea that "no" doesn't make unwanted intercourse rape is truly frightening and creepy. That at some point during sex a woman's body suddenly becomes not her own is completely offensive. It's a shame if a guy has to go home with blue balls, but that's not as bad as a woman's having to live for the rest of her life with having been raped.

[TahitiNut]

17. Is it at all possible that it could be WRONG and not be 'rape'?

This particular story has multiple DU discussion threads - none of which have I weighed in on. (Such a topic permits almost no rational discussion on DU of any kind.) Nonetheless ...

I'm inclined to examine the logic. (As a celibate man, it's my primary interest.) For example, we're pretty much in agreement that rape isn't about sex - it's about power and abuse. I then tend to wonder whether even 'consenting' to being abused is rape. I tend to wonder whether a changing 'motive' constitutes rape.

Since we seem to mostly agree that having intercourse with someone who's asleep (or drunk) cannot be regarded as "consenting" then I wonder whether the transition from a "consenting yes" to a state where consent is no longer presumable would aslo be called 'rape.' If not, then perhaps some other label is needed.

More significantly, however, I wonder why the sense of "WRONGNESS" locks folks into a single label of rape. Why not call it assault? Why not call it battery? After all, it's a Catch-22 ... feeding the "yes means no" and "no means yes" idiots.

The point is: It doesn't have to be called 'rape' to be wrong and actionable.

[China_cat]

19. The courts consider NOT saying no

as saying yes. So if you're asleep, drunk, drugged or have a knife at your throat and -can't- say 'no', it is the same as saying yes. Also, under this wording, if a woman says yes to vaginal sex and the man then forces oral or anal sex on her, she isn't allowed to say no to those.

And that's rape.

[kiahzero]

25. You might want to actually read the decision

You're wrong on all of those counts.

http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf

[rpannier]

86. Thanks for the link

I'm on page 22 of the 51 page decision.

This story is far more complex than the OP Subject Line would have me believe.

I'm assuming most of the people posting here also have not read even ten pages of the decision.

But...as usual...why let inconvienient facts get in the way of a good lynch mob.

[TahitiNut]

26. Your post is both factually incorrect and fallacious.

:shrug:

[kiahzero]

28. How can it be wrong when it feels so right?

... yeah, the avatar really applies at the moment.

[TahitiNut]

34. Exactly.

It's the same 'basis' on which lynch mobs were formed.
Self-righteous zeal irrespective of fact and devoid of reason.

[Name removed]

66. Deleted message

Message removed by moderator. Click here to review the message board rules.

[renate]

2. that is horrifying

What kind of twisted pervert would WANT to keep having sex with somebody who was unwilling? Other than, you know, a RAPIST?

:puke:

There just aren't words for this return to medievalism.

[Matariki]

5. this law is REALLY evil - BUT this article is also worded deceptively

a woman doesn't HAVE to 'give it up'. That's ridiculous. Nor does the law say a 'woman can't say no' - the law is attempting to define the line between consent and rape. The law appears to assert that consent, once given, negates a rape charge. Yes, it's ass backwards and doesn't take a lot of possible scenarios into account. But I wish the language of the article was more accurate and less inciting.

[ThomCat]

9. I think the article is very well written.

This is not an issue that should be burried with dry language.

If a woman decides that he's being too violent she has no right to say "Stop" under this determination. Our opinions of this should be trumpetted from the tops of every courthouse.

This needs to get appealed and overturned, or else the legislature needs to change it. And we need to keep public pressure on things like this.
x(

[Matariki]

52. of course she has a right to say 'Stop'

and yes this law needs to be appealed and overturned.

but the article, and people's reactions to it, make it sound like a woman is somehow legally obligated to continue with sex, once started. Or that it's illegal for her to say 'NO' once she's said 'yes'. That's misleading.

[ThomCat]

58. The article doesn't say that it's illegal for her to say no

after sex has begun, but that he can't be convicted of rape if she says no after sex has begun.

There are many very valid reasons why a women might say no after sex has begun, and if a man refuses to stop it should be considered rape. That is what this is all about.

Yes, we agree, this law needs to be appealed and overruled.

[lukasahero]

6. On the bright side - and yes, one has to look hard to find a bright side - the poll

No means no is beating the crap out of "Yes, a woman can't claim rape after she said yes and sex has started." 67% No - 33% Yes.

[gorbal]

7. Don't let me be alone with the men who said "yes"

I bet they are all bible-thumping men too. Sometimes it hurts after you start having sex, so you want to stop. (especially if you are a virgin) This is basically legalizing hurting women.

[ThomCat]

11. I'll bet you're wrong.

I'll bet there are a whole lot of guys who never read the bible who agree with this shit too.

Any guy who's only interest is getting some and getting lost is going to support this kind of thing. Anyone who takes the selfish view that you have a right to whatever you can get, and who considers sex and women to be commmodities is going to support this kind of thing.

Unfortunately, there's no shortage of those guys.

I agree that this legalizes hurting women. It also legalizes date rape. All a guy has to do is say that she consented and then changed her mind. How is she going to prove otherwise? The reasonable doubt standard is going to guarantee that he doesn't get convicted.
x(

[kiahzero]

12. This decision didn't change the law.

So this decision didn't "legalize" anything.

[ThomCat]

16. Okay, it validates and allows date rape.

Is that better?

[kiahzero]

21. Not really - it casts unfair aspersions on the judge

There's a persistant attitude that the judge had a choice in the matter. If you read the decision, he essentially writes the higher court decision for them, providing all sorts of citations for other jurisdictions that have done just that, and explaining the archaic nature of the precedent. However, he has no power to overturn a higher court decision.

[LostinVA]

69. Exactly: it legalizes date rape

That was the first thing I thought of. It also legalizes a woman submitting to a rapist so she won't get beaten, etc. That was the second thing I thought of. The third thing I thought of: GD is going to be fucking brutal the next two days.

I was right on all three counts.

[philly_bob]

43. Female lubrication changes in menopause and friction hurts...

So a monogamous couple, having sex for years without using lubricant, may suddenly be surprised that what was always so trouble-free and fun suddenly hurts.

So the woman says, "Ouch, that hurts. Stop!"

Now what man in his right mind, making love to his life partner, is not going to stop?

Luckily, they sell lubricant.

[notadmblnd]

8. So was it determined at what point sex starts?

Looking into each others eyes lustfully, holding hands, kissing? Or is it actually vaginal penetration. And what about oral.. does that count? See we're not so different from those people our president likes to call Islamo Facists... Once again women will have to pay the price for a man who has no self control.

[ThomCat]

15. Given the situation in Date Rape trials

where simply being on a date is already seen as evidence of a consential relationship, women are already forced into the impossible situation of having to prove that they did not concent. This is going to bring that impossible situation front and center.

Rapists no longer have to lie and insist that she consented the whole time. Now they only have to lie and say she consented at first.
x(

[kiahzero]

10. There's already a 250-post thread on this exact decision.

I look forward to another flame war.

[donsu]

13. I haven't seen that thread - when was it?

nt

[donsu]

20. what made the other thread a flame?

nt

[kiahzero]

23. Here's the link

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x2541072

The other thread went flamey primarily over whether "five or seconds or so" between the withdrawal of consent and withdrawal of the penis was more than the "ample time" required to withdraw after consent had been revoked. There were also issues over the particular blog linked.

[donsu]

14. can this Appeals Court be appealed?

nt

[Name removed]

29. Deleted message

Message removed by moderator. Click here to review the message board rules.

[kiahzero]

30. Did you forget something?

:sarcasm: ?

[boolean]

31. No. I'm serious.

Women will never know what it's like to get blue balls. I'm just sayin'.

[donsu]

32. you don't think women suffer unrequited lust?

nt

[kiahzero]

33. Not true at all.

Women can be sexually frustrated too. Not that sexual frustration is an excuse for continuing to have sex after the other person has told you to stop.

[TahitiNut]

38. Rosie Palm and her five daughters are always there to serve.

:eyes:

[ThomCat]

41. There is no damned such thing as blue balls.

x(

And everyone here is smart enough to know it.

[HarukaTheTrophyWife]

36. This is the most disgusting post I've read in a long time.

"Blue balls" is like rape? Give me a fucking break. Way to spit in the face of rape survivors.

[ThomCat]

40. You didn't just compare not reaching orgasm with Rape

did you?

That is just the most insensitive, incredibly offensive thing I've read in a long time. And there have been a lot of insensitive things posted recently.
x(

[notadmblnd]

44. ha ha ha...... you can't be serious.....

I just can't stop laughing. Oh, your poor penis... Ok, I'll have to think about that one a while longer... as soon as I stop laughing. :rofl:

[boolean]

47. See what I mean?

You know nothing about it. It's a form of torture. And any man here who says not is either being PC or has never actually experienced it.

[notadmblnd]

53. and how many times have one of you guys left us women hanging?

for most of you, as soon as you get your little nut, it's roll over and go to sleep time. Yeah us women would know nothing about being left ungratified.:crazy:

[ThomCat]

55. LOL! I was waiting for a woman to post that!

:)

Excellent response!

[notadmblnd]

57. lol... thanks for your support.

You don't know how much I appreciate it. have a great day.

[ThomCat]

54. Wrong.

Any man who goes for a length of time without an orgasm is going to have a wet dream. Nothing worse than that is ever going to happen unless you have some other kind of medical condition.

Not being able to finish to organism may be a little frustrating, but it's not painful. You always have the option of masterbation to release that frustration.

It's certainly not comparable to being overpowered and violated. x(

Come on. Learn at least a little bit about human sexuality, and have some compassion for what rape really is, before you post this kind of nonsense.

[NMMNG]

77. Well use your hand

You figured out how to do it when you were little, you can remember how as an adult. It's just like riding a bike--you never forget.


And any man who claims women don't get frustrated is an ignorant buffoon. We just don't use it as a justification to force ourselves on others.

[JudyM]

49. Not as much as it sucks to be overpowered (when you don't want to be.)

That is a creepy-ignorant response, devil's advocate or not. You sure you're a Democrat? We're kind of interested in people's rights.

:crazy:

[kiahzero]

51. I hold out hope that it's just flamebait. (n/t)

[Matariki]

56. Ha! And YOU have no idea what it's like when a guy can't maintain his erection

and stops half-way through sex. By your definition - that's a form of "rape" :crazy:

[progressivebydesign]

35. What if you say yes, then he begins to rough you up and sodomize you..

Does the court believe that's a blanket YES? I'm so fucking sick of old white men deciding things for us.

[kiahzero]

37. No. Please learn to read.

http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf

This is also exactly what I picture when I think of old white men:


Edit: Here's the link to his bio: http://www.mdarchives.state.md.us/msa/mdmanual/30sp/html/msa11676.html . Amazing what you can do with a few seconds worth of research on Google.

[ThomCat]

46. Nice way to ignore the main question in that post.

[kiahzero]

50. If the poster read the decision, they would know the answer.

Hint for the slow: the answer has two letters, one of which is a vowel.

[readmoreoften]

60. The fact that you've read your own link and come away with that scenario

being consensual is terrifying to me.

[ThomCat]

68. Same here. And by hiding behind the legalese

it just looks even scarier.

Yes, the jury acquitted. Juries are well known for deciding that women "are sluts who got what they deserved" despite sometimes monumental amounts of evidence.

We're stuck accepting the jury's decision in this case, no matter how wrong it appears to be. But that does not mean that we can't critique this situation, this law, and the behaviour of rapists to prevent this shit from happening in the future.

I feel so sorry for that women. Two men physically restrained her, stripped her and raped her. They left injuries consistent with the use of force. She had to be coerced into saying yes, and then said no again. And this was somehow not enough proof of rape. That just boggles my mind.

But people here will insist on ignoring the well known biases in the system, and based on the assumption that the system is entirely fair and just will use this to show that this was just consentual sex.
:puke:

[kiahzero]

73. It's a legal decision.

Forgive me for analyzing the decision from a legal perspective.

[LostinVA]

70. Per this decision, yes

Sickening, huh?

[NorthernSpy]

71. not so!

... and here's why:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2550802&mesg_id=2551882

[ThomCat]

72. That idea of someone getting violent during sex

is NOT a red herring. For a lot of women who have been raped it's exactly what happened.

It must be nice to discount a lot of people's real experiences. :eyes:

[NorthernSpy]

78. I pointed out that violent acts are criminal whether they occur during sex..

.. or not.

Some here have come up with this scenario in which a woman consents to sex, and then the guy gets violent and starts trying to do things that she doesn't want. The claim is that the point of law that we are discussing would excuse whatever the man might do after a woman consents to sex.

And I'm saying that this claim is false, and that the scenario is a red herring. It is true that the original sex act cannot be charged as rape, because the woman consented to it. BUT: any acts of violence or coercion that followed the beginning of consensual sex are still crimes. Battery is against the law whether one turns violent during sex, or during breakfast.

Do you understand this?

[Jamastiene]

84. Whether someone is violent about it or not, it's still rape

if the woman says no and the guy continues to harrass her into doing what she doesn't want to do.

[LostinVA]

74. It is true, and you know it

And, I find your trying to make this decision "rational and reasonable" weird and scary.

Welcome to Ignore, apologist.

[NorthernSpy]

81. what have you got against reason?

Seriously: how do you expect a jury to convict someone on the basis of a rape claim that amounts to this: I said yes, and we started having sex, but then I said no, and he didn't stop fast enough. So I'm a rape victim, and please throw him in jail for twenty years or so.

I don't believe that the claim that a man didn't withdraw "fast enough" (how the hell could we even quantify that?) warrants a rape charge, and neither does the law.

And before you throw in the red herring catch-of-the-day, I've already dealt with that lover-turning-violent scenario. Battery is against the law, whether it occurs during sex or not.


Oh, and what am I supposed to be an "apologist" for? The "reasonable doubt" principle? The "yes means yes" principle? The "try to remain rational" principle?




(edit: proof reading)

[Jamastiene]

83. How hard up are you if you need to rape a woman to get

your jollies? That's pretty desparate. A real man has more respect for a woman than that.

[readmoreoften]

59. I think it's tragic that so many posters think this is a just decision in light of the case.

This is a teenaged girl, who found herself in the car with two boys. She SAID no at the beginning, and when no attention was paid to the first *no* he said "I don't want to rape you" (unfortunately this is very tone dependent comment; however, considering that there was another boy moving her body into position against her will I think it can be inferred that the comment is likely to be more of a warning than genuine concern-- as in "consent or I will have to rape you". Given this alternative, she said "yes, if you stop when I tell you to stop" (as in "yes don't rape me" which makes no sense to us, but might make more sense to a 16 yo's mind.)

The fact that one boy was sitting on her chest while another was removing her jeans, by the fact that she had already said no, and due to the fact that her "yes" was only really a plea against being raped (as in "we can do this nice or we can do this nasty") I think that there is tremendous evidence that this girl was raped.

People on this thread and other threads have played this off as if the scenario is two adults, consensually having sex, and then suddenly, in the heat of passion, the woman whispers "stop", and then her lover takes a few seconds to come to his senses, and then he is thrown in jail. That is NOT what happened in this case. That is a complete mischaracterization of what went on.


*************************

bold-face mine.


After Jewel acquiesced to the boys’ insistence that they stay
ten more minutes, she found herself on her back with appellant
removing her jeans and Mike sitting on her chest, attempting to
place his penis in her mouth. After she told them to stop, the
pair moved her around so that her body was up in appellant’s lap as
he held her arms and Mike tried to insert his penis in her, but
briefly inserted it into her rectum by mistake. After Mike again
tried to insert his penis in the complainant’s vagina, appellant
inserted his fingers in her vagina. After appellant exited the
car, Mike inserted his fingers, then his penis into her vagina.
Mike then got out of the car and appellant got in. Appellant
told Jewel that it was his turn and, according to the complainant,
the following transpired:
Q. : And what else did he
say?
A. He, after that we sat there for a couple seconds and
he was like so are you going to let me hit it and I
didn’t really say anything and he was like I don’t want
to rape you.
* * *
-4-
Q. So when Maouloud said I don’t want to rape you, did
you respond?
A. Yes. I said that as long as he stops when I tell him
to, then -
Q. Now, that he could?
A. Yes.
* * *
Q. Did you feel like you had a choice?
A. Not really. I don’t know. Something just clicked
off and I just did whatever they said.
* * *
Q. Now when you told if I say stop,
something like that, you have to stop. What did he do
after you spoke those words?
A. Well he got on top of me and he tried to put it in
and it hurt. So I said stop and that’s when he kept
pushing it in and I was pushing his knees to get off me.
Q. You were on your back and he was on top of you?
A. Yes.
Q. Did he stop pushing his penis into your vagina?
A. Not right away.
Q. About how long did he continue to put his penis into
your vagina?
A. About five or so seconds.
Q. And then what happened?
A. And that’s when he just got off me and that’s when
Mike got in the car. . . .
Jewel testified that appellant continued for five or ten
seconds, but she did not believe that he had ejaculated.

[kiahzero]

62. Did you happen to keep reading?

There are material questions of fact regarding that version of events.

[readmoreoften]

64. I saw testimony that questioned the events. But it sounded much less

credible. The only material fact that seemed relevant to me was the centimeter long gashes in her anal and vaginal regions. Consistent with rape.

What material fact are we talking about? The fact that she gave her telephone # to the accusers? Totally consistent with PSTD. Particularly if it was a cell phone number and could be immediately checked.

[kiahzero]

65. The material facts regarding consent and withdrawal

The jury (who actually saw all the evidence) seemed to think that she consented initially and withdrew consent, based on their questions.

[readmoreoften]

67. Well, considering the comments of folks here and the lack of

justice that comes to victims of sexual assault-- even stranger rape-- I suppose I don't have as much faith in the system as you do. Having not seen the evidence myself, I can't make a judgement based on that and I refuse to *assume* that a jury made an accurate decision. In fact, I think that this is a poor case to champion. From the facts I see, I would strongly lean in the direction that this girl was intimidated into sex.

Most rapists don't want to think of themselves as rapists. Rare as it is, I was actually witness to one of those rare bird cases of a woman who had accused an innocent male of rape and I personally prevented it from going to trial. But after reading this case, it has none of the earmarks of such a case and every earmark of an actual rape case.

[NorthernSpy]

61. misleading article -- it's not that you can't say no after saying yes...

The point is that the simple sex act that you originally consented to cannot be charged as rape -- which seems only fair. After all, how could a rape charge based on one person's assertion that the accused "didn't stop as soon as I told him to" ever satisfy the reasonable-doubt standard for a conviction?

The objection concerning a sex partner who gets violent in the course of originally-consented-to sex is just a red herring. Acts of physical violence and abuse are still crimes whether they take place during sex or not.

[LostinVA]

75. sick sick sick sic k sick

Making excuse for something which very well could be rape? Red herring?

Ugh.

Do you have a sister? A girlfriend? A mother? A wife? If so, and you still think that...

[NorthernSpy]

82. you didn't answer the question

I wanted to know how a rape case based on a claim that the man didn't stop fast enough during a consensual sexual encounter could ever overcome reasonable doubt.

And apparently, you have no answer for that. Which is too bad, because it's an important point. You seem to think that we should just accept such claims as valid -- purely on faith, I guess.

I don't think that's reasonable.

Do you have a sister? A girlfriend? A mother? A wife? If so, and you still think that...

Shucks, what about my own little self? I am a woman, you know.

[unsavedtrash]

63. this Baltimore website has the article with a poll on the subject

http://www.thewbalchannel.com/news/10198629/detail.html

SURVEY
Do you agree with the courts ruling that no doesn't mean no after sex has started?
Yes, a woman can't claim rape after she said yes and sex has started.
No, a "no" means no -- no matter when it is said.

[Hepburn]

76. I am a lawyer and I read the appellate opinion.

Here is what it is all about: (The Holding)

We hold that the combination of the ambiguous question, ambiguously clarified by the trial judge, and the answer create sufficient confusion in this case to warrant reversal and a remand for a new trial.

http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf

Bottom line: It was about the failure of the judge to clearly instruct the jury on the law of the jurisdiction.

Further from the opinion:

A fair interpretation of the jury’s question is that it was an inquiry as to the legal effect of a withdrawal of consent subsequent to penetration, and prior to climax.

(Italics in the original.)

(Ibid.)

Further from the opinion:

...the trial court’s obligation to inform the jury of the current status of Maryland law. It is currently a statement of Maryland law, that has neither been overruled nor commented upon negatively. Whether it should be revisited in light of the weight of authority to the contrary is a matter for for the Maryland legislature or the Court of Appeals. Under Battle, no rape occurred if the jury found that the prosecutrix withdrew her prior consent after penetration. The trial judge was obliged to answer the jury’s questions and it should have been advised that, under Maryland law, the answer is “no” to the question, “If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind and the . . . man continues until climax, does the result constitute rape?” The holding in Battle, of course, would not have been a bar to a conviction for common law assault for any continuation of the sexual act against the complainant’s will after the withdrawal of consent.

(Ibid.)

The defendant's convictions were for:

-- First Degree Rape which is defined in the Maryland Code as:

§ 3-303. Rape in the first degree.

(a) Prohibited.- A person may not:

(1) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; and

(2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;

(ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;

(iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping;

(iv) commit the crime while aided and abetted by another; or

(v) commit the crime in connection with a burglary in the first, second, or third degree.

http://198.187.128.12/maryland/lpext.dll/Infobase/161db/163e0/16523/16567?f=templates&fn=document-frame.htm&2.0#JD_cr3-303

--First Degree Sexual Offense which is defined in the Maryland Code as:

§ 3-305. Sexual offense in the first degree.

(a) Prohibited.- A person may not:

(1) engage in a sexual act with another by force, or the threat of force, without the consent of the other; and

(2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;

(ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;

(iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping;

(iv) commit the crime while aided and abetted by another; or

(v) commit the crime in connection with a burglary in the first, second, or third degree.

http://198.187.128.12/maryland/lpext.dll/Infobase/161db/163e0/16523/1658b?f=templates&fn=document-frame.htm&2.0#JD_cr3-305

--Third Degree Sexual Offense which is defined in the Maryland Code as follows:

§ 3-307. Sexual offense in the third degree.

(a) Prohibited.- A person may not:

(1) (i) engage in sexual contact with another without the consent of the other; and

(ii) 1. employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;

2. suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;

3. threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or

4. commit the crime while aided and abetted by another;

(2) engage in sexual contact with another if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual;

(3) engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim;

(4) engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old; or

(5) engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old.

http://198.187.128.12/maryland/lpext.dll/Infobase/161db/163e0/16523/165af?f=templates&fn=document-frame.htm&2.0#JD_cr3-307

The Bottom Line: The law as written in Maryland is IF the consent is given prior to the act, there cannot be a crime BECAUSE a necessary element of the offense is that no consent was obtain PRIOR to vaginal penetration. Once consent is obtained, the crime does not lie because in all of the above 3 codes sections the defining element is lack of consent prior to the conduct.

IMO, in the instant matter, the appellate court had NO alternative but to over-turn and remand for a new trial BECAUSE the judge failed to give the proper instructions to the jury. The law quoted above is from the legislature...and the court in this case had NO choice on the issue of withdrawal of consent after penetration because an essential element to all of the charges. In Maryland it appears that under the law ~~ which existed much prior to the opinion in this case ~~ it is required that the victim say NO prior to any penetration. Once there is penetration, there cannot be rape or the other two sexual offenses with which the victim was charged ~~ although other criminal charges may be applicable.

Btw: This above is a LEGAL opinion on a reading of this case and a review of the applicable law and it is not a personal opinion. My personal feelings are that when a woman says NO at ANY time, it is some form of criminal sexual conduct if the man does not cease and continues in the act of sexual intercourse.

[supernova]

80. Thank you for that.

I sort of read it as the court saying "This, as written, is rather stupid. The legislature needs to revisit the law."

[rpannier]

85. self delete