Rape Law

Warning: controversial topic; reader discretion advised.

Sex is a topic that gives courts a lot of trouble. They just seem to go to absurd extremes in both directions.

Time Magazine calls attention to a Maryland case in which a man and a woman started having sex consensually, but the woman then asked the man to stop. The man did stop, but not instantaneously. A jury convicted the man of rape.

On appeal, the court said (hold on to your hats):

[T]he English common law . . . view[ed] the initial “de–flowering” of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party - the father or husband. This initial violation of the victim also provided the basis for the criminal proceeding against the offender. 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.

In other words, once a woman consents to sex and the sex act has begun, she can't ask the man to stop—apparently, no matter what. (The opinion has been withdrawn pending reconsideration.)

Now, this is ridiculous. If you invite a guest onto your property, and then ask him to leave, he has to leave. It's a trespass to stay after being asked to leave, even if the person initially entered with consent. Maryland law recognizes this: in a case about reporters, the court observed that "by continuing to stay after being asked to leave, the reporters exceeded the scope of any consent, even if the reporters did not commit a trespass in entering the room." Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 516 (2005). Apparently, Maryland law gives a woman less control over her body than over her property. If a woman starts to feel pain during sex, or realizes that the man is not using a condom, or yes, even just changes her mind, she has to have the legal ability to control access to her body.

On the flip side, however, the facts of the Maryland case seem equally incredible. According to the complainant's own testimony, when she asked the man to stop, he did stop, within about five or so seconds after she asked, and he didn't climax during those five seconds (see page 4 of the opinion).

Five seconds? I find it hard to understand how someone could get prosecuted for, much less convicted of, rape, for taking five seconds to stop sex. That's about enough time for "huh?", "no, stop." Even in the calm atmosphere of one's office, that seems like a sufficient response, and especially so when one factors in the heat of passion.

If the defendant had continued for minutes, as defendants in cases from other states have, the case would be different. It isn't so easy to specify where the exact time limit lies. Some cases would be difficult. But I, at least, would regard five seconds as pretty clearly permissible.

Rape is a very serious crime. The defendant in the Maryland case was sentenced to fifteen years imprisonment (although all but five years were suspended). Saying that someone has committed rape when he takes five seconds to stop a sex act that began consensually, and sending him to prison for fifteen years, or even for five years, is disproportionate.

Well, it's always dangerous to form opinions about criminal cases based on reading media reports (or some blogger's account, for that matter). A closer look at the Maryland opinion reveals that the woman's initial consent to sex was perhaps not so clear (she said yes, but under somewhat coercive circumstances). Maybe that's what the case was really about, although notes from the jury suggest a focus on what happened after the sex began. Read the case yourself and see what you think. But it sure seems as though sex unbalances the judicial mind and drives courts to extremes, in one direction or another.

Posted 2-16-07 11:35 am