Tuesday, October 31, 2006

Changing Your Mind = Not Allowed in Maryland

via Feministing, a Maryland appellate court decided that it's not rape if you consent to sex and decide or need to withdraw that consent during intercourse. The specific court decision [PDF] focuses on what a jury should have been told regarding this matter:

"JURY INSTRUCTIONS; COURT’S RESPONSE TO JURY QUESTION REGARDING WHETHER PRIOR CONSENT VITIATES CRIMINAL CHARACTER OF POST PENETRATION WITHDRAWAL OF CONSENT; BATTLE V. STATE, 287 MD. 675 (1980); QUESTION POSED BY JURY, “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?” WAS NOT AMBIGUOUS AND THUS REQUIRED A SPECIFIC ANSWER AND, NOTWITHSTANDING WEIGHT OF AUTHORITY TO THE CONTRARY, SHOULD HAVE BEEN ANSWERED IN THE NEGATIVE UNDER THE MOST CURRENT MARYLAND LAW TO ADDRESS THE ISSUE."

The actual case itself is detailed in the PDF linked above, and is somewhat complicated, so you may want to read it for yourself. Much of the case for why this situation should be rape as outlined in the previous trial is also described.

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MeSH Tags: Maryland; Rape

3 Comments:

Blogger Craig said...

Actually, the appeals court held that it was already the law that consent cannot be withdrawn after penetration and that the law cannot be changed by a trial court:

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 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?

I would note that this court was not the Court of Appeals but rather the lower Court of Special Appeals. The court concluded that the prior precedent did not permit post-penetration withdrawal of consent, and that only the Court of Appeals or the legislature can overrule a prior Court of Appeals decision.

In fact, the way the opinion is written suggests that the court wanted to invite such review, both as it so explicitly set forth the possibility of review and that it explained the "rationale" that motivated the prior law in a not-particularly-flattering way. If I had to guess, this opinion was issued by a judge who recognized that the law needed to be changed but also that neither this court nor the trial court had the authority to change it.

10:00 AM  
Blogger Rachel said...

Craig - Yes, the highlighted summary states that the jury should have been informed that this was the case. I'll be interested in seeing where this goes from here.

10:54 AM  
Blogger Craig said...

I'm not particularly familiar with Maryland procedural law, but I would guess that the state can file a petition to have the matter reviewed now by the Court of Appeals. That petition is, of course, discretionary, so the Court may decline to hear it (perhaps by deferring to the legislature). I am guessing the state has something like 10 or 30 days to make a decision.

11:15 AM  

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