I’ve grumbled (incessantly) in the past, of how silly, irrational and down-right contradictory some laws are. However this evening I found a copy of the judgement to Baby v Maryland, a rape case appeal from Maryland, USA, which made me metaphorically throw up a bit in my mouth. The whole thing is accessible here, but since it’s 51 pages, I’ll point out the main bits. Note that this case was decided in 2006. That’s last year.

The following is the judge deciding when withdrawing consent before, during and after sexual intercourse is considered rape. He cites the case of Battle v State first, specifically where the judge in that case had said (on page 26):

“The authorities are unanimous in the view that consent subsequent to the act of intercourse will not prevent its being rape.”

Okay fair enough. If two people have had consensual sex, it’s simply illogical to say you withdraw consent to something that has already happened. But from there, the judge in that case made the logic-defying leap to conclude that (on page 29):

“On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape.”

WHAT THE FUCK. The judge is basically saying, “because we’ve decided there’s no rape if you consented after sex ended, then it’s also not rape if you consented once sex has started”. The sheer misunderstanding of how sex and people work is mind-boggling. Sex is not a rollercoaster; it’s not like once you get on you have no option to get off (no pun intended!). If a party doesn’t want to keep going once it’s started, then the act ought to stop. If it doesn’t, then it should be considered rape. Because these cases deal with women who get raped, there appears to be this frightening assumption of some kind that men who have sex with women simply CAN’T stop, or more disturbingly, SHOULDN’T have to stop, having sex once it’s started.

But okay, the Battle v State case WAS decided in the 1980s and well MAYBE one can argue that back then things were simply more conservative and the idea that women aren’t objects isn’t as wide spread as it is today. But for some reason Baby v Maryland, the 2006 case, decides to follow Battle v State. After quoting Battle v State (above), this 2006 case goes on to say (on page 31-32):

The concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law, views the initial “de-flowering” of a woman as the real harm or insult which must be redressed by compensation, in legal contemplation, the injured party - the father or husband… But, to be sure, it was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male’s interest in a woman’s sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be “re-flowered,” that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape. Maryland adheres to this tenet, having adopted the common law, which remains the law of the Land until and unless changed by the State’s highest court or by statute.

*heaves*

*head explodes*

I… just… wow. Ladies and gentlemen, let me state this again; the above quote came from a judgement in 2006. It’s asserting that just because “ancient laws” (the footnotes, BTW, say that the “ancient laws” they refer to are ancient Assyrian laws) dictate that:

  • Women are property;
  • Rape of a woman is an “insult” to her father/husband; and
  • Rape is only “rape” when it’s the act of “de-flowering” a woman; anything after that is less consequential because it holds less value to men;

this should apply to the women in Maryland, USA, in the 21st century. I’ll let you mull over that.

The case actually then goes on to list a bunch of cases that goes against such sentiment and that such reasonings are “archaic and unrealistic” (page 34) and that there are “only three decisions which appear to hold that prior consent vitiates post penetration withdrawal of consent” with one of the cases being Battle v State (page 35). Nonetheless, the judge in Baby v Maryland decides to apply Battle anyway, with the incredibly feeble justification that:

“It is currently a statement of Maryland law, that has neither been overruled nor commented upon negatively.”

Now I know that following precedent is a big thing in law, i.e. that cases need to follow previous case law that has been decided by a higher court. But this is just ridiculous. The fact that the judge in Baby v Maryland went so far as to cite Assyrian law just to justify why continuing with sexual intercourse after the other party has withdrawn consent is NOT rape is so revoltingly sexist, it’s terrifying and makes me so angry. This above decision is on appeal (link curtesy of Feministing) to the highest court in Maryland, and fingers crossed that the previous judgement would be overturned.