The frivolity of words, the materiality of deeds

Speaking of frivolous policies did you get a load of the decision handed down yesterday by Maryland's Court of Special Appeals saying that a second rapist isn't guilty if, at any point, you consent to penile insertion as an alternative to, say, the first rapist...

...sitting on her chest, attempting to place his penis in her mouth.

Read the quote from the Court of Special Appeals opinion in this official Maryland Courts document (PDF.)

Evidently the victim initially agreed ("consent" would be an incorrect correct term under the circumstances) to allow the second rapist to penetrate her, but when it hurt she asked him to stop. He refused.

The Court of Special Appeals says that under Maryland law

The pertinent question is whether that pronouncement is an accurate statement of the English common law which is, conceptually, the genesis of the notion that there is no rape where the prior consent is followed by penetration and then withdrawal of consent. Battle says that it is. 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 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, 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.

In other words, as in much of America until at least the 1970s, and evidently in Maryland today, rape is considered a crime against whichever man is the victim's custodian (her father or husband) but not against the woman herself. And the crime is interference in the custodian's "interest in [the] woman's sexual and reproductive functions" rather than a crime against her as as an autonomous, emancipated citizen of the United States of America or a resident therein.

Don't get me wrong, as you read the opinion you get a sense that the court is sympathetic to the actual victim's situation.

As noted, whether the Battle pronouncement [an earlier decision the appeals court evidently felt bound by] is dicta is immaterial to 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 the Maryland legislature or the Court of Appeals [emphasis mine --fl]. 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.

It's also clear that the judges recognize that the situation was coercive -- their same ruling overrules the defense attorney's motion to toss out testimony by an expert witness that the victim's actions before, during, and after the attack were consistent with traumatic shock.

But evidently the law of the land in that state says even if you use intimidation or force to get there, once a rapist penetrates his victim the "harm" -- to her custodian, no less! -- is done and therefore it's not a crime for him to continue just because she asks him to stop.

I mentioned frivolity at the beginning of this post because I'm guessing the defense attorneys didn't expect their motion to prevail on appeal but tossed in in because that's what attorneys do: throw everything in the drawer against the wall and hope something sticks.

But I mentioned frivolity for a larger reason as well: The bloggers I've seen reference this so far have only expressed the usual shock and outrage. Fine. I feel shocked and outraged too. But shock and outrage without actually *doing* something is merely Lifetime-Channel-style self-entertainment and, in the face of material wrong, frivolous.

The Maryland court said like it or not that's the Law of the Land "until and unless changed by the State's highest court or by statute." That suggests a pretty clear call to action. I quickly Googled up my local State representatives, phoned their office, told them about the case and asked if we had similar "Laws of the Land." They said they thought didn't think so. I said that so, evidently, did the lower courts in Maryland. They said "send us more information and we'll get on it." I said "Thanks, I will." And I did.

I sent them the following links to news sites:

- http://www.msmagazine.com/news/uswirestory.asp?ID=9972,
- http://wjz.com/topstories/local_story_304100454.html

I explained that while the news stories are a little vague, the incident in question happened during an uncontested sexual assault.

I included the following link to the Court's decision and explained that it was in PDF form

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

I pointed them to page 5 of the document which makes clear that the victim's "no" happened in the course of an extended sexual assault.

I pointed them to page 32 of the document which makes it clear that Maryland State Law really doesn't support a woman's right to say "no."

I asked them to make sure the law of the land in *our* state make it very clear that
- rape and other forms of sexual assault are crimes against the *victim* and not a custodial male
- "no" always means "no."

And finally I thanked them for their attention to the problem.

You can do that too. So go do it.