A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History

By SHERRY F. COLB
Wednesday, Nov. 15, 2006

Late last month, in Maouloud Baby v. State of Maryland, the Court of Special Appeals of Maryland held that once a man has begun a consensual act of sexual intercourse with a woman, he may continue until he climaxes - even if she asks him to stop - without violating the law of rape.

In the State of Maryland, in other words, the law of rape presently does not authorize a woman to demand that her partner withdraw after penetration has already occurred.

This ruling and the precedent on which it relies rest on an explicitly anti-woman vision of what makes rape a harm to its victims.

How the Question Arose

It was the members of the jury at a Maryland rape trial who first raised the question presented by this case. During its deliberations, the jury produced a note, containing an inquiry for the judge. The note was read into the record, as follows: "'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' [here, the note-reader appears to have had difficulty deciphering the note:] I think it is, 'man continues until climax, does the result constitute rape?'"

The trial judge ultimately decided not to answer the jury's question and instead directed the jurors to re-read the instructions on each element of the crime of rape. The judge apparently believed that the jurors were asking for a judicial finding of fact rather than posing a legal question. After receiving the judge's non-response, the jury ultimately brought back convictions for first-degree rape (as well as assorted other sexual crimes) against defendant Maouloud Baby.

On appeal, Baby argued, among other things, that the trial judge erred in not responding (in the negative) to the jury's question about the definition of rape. The Maryland Court of Special Appeals, an intermediate state appellate court, agreed, reversed Baby's convictions, and remanded the case to the trial court for further proceedings consistent with the opinion.

Interpreting the Rape Statute

In deciding how to define the crime of rape, the appellate court considered Maryland precedents as well as the history of rape law that preceded passage of the statute.

In looking to history, as the highest court of Maryland had done in 1980, in Battle v. State, the court said that Maryland's criminal law of rape was based on the English common law crime. I cannot do the court's analysis "justice" without quoting from it directly:

"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." (Emphasis added.)

Because this approach to rape (as a nonconsensual and forced "deflowering") would consider any post-consensual-penetration (and pre-climax) activity relatively insignificant, the court reasoned, the Maryland law must accordingly be read to do the same.

Procedure and Substance

Thus, Maryland's highest court had asserted in Battle that there was no crime of post-consensual-penetration rape, and the Maryland intermediate appellate court felt bound by that assertion. The fact that the actual result in Battle did not turn on the assertion (which could therefore be characterized as dicta) did not alter the court's perception of what it had to do.

The intermediate appellate court consequently concluded, based on Battle, that the exclusion of post-consensual-penetration rape "remains the law of the Land until and unless changed by the State's highest court or by statute."

One could argue, as the government did in Baby, that the appellate court was free to decide the issue the other way, because the highest court of Maryland never actually issued a ruling that rejected the crime of post-consensual-penetration rape.

That argument, however, would rest substantially on the wrongness of the underlying substantive interpretation of the rape law. That is, if an odious statement about the law from a higher court can possibly be distinguished or characterized as dicta, it would seem desirable to so characterize it.

Let us focus, then, on why the underlying substance is so wrong.

Looking to History to Illuminate Modern Rape Laws

It is clear that historically, what made rape a crime had little to do with a woman's entitlement to bodily integrity and much to do with women's status as essentially the sexual property of men. As the Baby opinions suggests, "the cultural mores undergirding the notion that the crime of rape was complete upon penetration may be traced to Biblical and Middle, Assyrian Laws."

Such ancient laws viewed women as the chattel of "their" men - their fathers or husbands. To rape a woman was, then, to reduce the value of an asset held by her owner, a value that turned on whether the rapist had or had not achieved vaginal penetration.

For this reason, the Baby court emphasized that "[t]o 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." (Emphases added).

It is doubtless very interesting to learn the history of the law of rape, in part because it helps educate us about how slave-like women's status relative to men used to be. There is, however, something distasteful about the citation of Biblical law as support for the proposition that in Twenty-First Century Maryland, the rape statute does not give a woman the right to change her mind after penetration.

The actual written law of Maryland, incidentally, does not specify any distinction between the giving of consent pre- and post-penetration. It simply states: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person."

Such language - hardly unique to Maryland - would easily admit of a reading that says that as soon as consent is withdrawn and force is used - whether pre-penetration or post-penetration - further intercourse constitutes rape.

Instead of looking primarily to the text of the law, however, the Maryland courts have chosen to tie a modern interpretation of a statute to the prejudices of the ancients. Consider an extreme analogy to illustrate the difficulty with this approach:

Imagine that a white man today stood accused of raping an African-American woman. Imagine further that the rape was alleged to have taken place in a particular southern state, where, at the time the crime of rape was first codified, forcing a slave - or a free black person of at least one-quarter black ancestry - to have sex did not qualify as the felony of rape, because contemporary understandings considered "persons" to include only white people. Assume that the language of the state's existing rape law, however, is identical to the language of the Maryland law, reproduced above.

Now imagine that after the close of the defendant's evidence, today's jury asked the following question: "If we find that the complainant is at least one-quarter black, and that the defendant forced the complainant to have sex, would those findings be consistent with a conclusion that rape occurred?" The answer would, of course, be "Yes," coupled - one hopes - with an admonition that the race of a complaining witness is irrelevant to the jury's determination of guilt.

In our hypothetical example, the fact that legislators and others thought about rape as a crime against white womanhood at the time the statute was passed does not and should not, in other words, make its way into a present court's interpretation of the statute.

It would indeed be reprehensible if an appellate court later reversed the defendant's conviction and held that because the state law originated at a time when an African-American woman would not have been viewed as a legitimate rape victim, the neutral language of the statute should have been construed to exempt the defendant who raped the African-American woman.

In one respect, of course, the hypothetical example I give is different from the Baby scenario and others like it. In Baby, the jury's question to the judge concerns the defendant's actions rather than the victim's status. Upon closer examination, however, Baby is quite a lot like my hypothetical example.

In each instance, the judge considers whether to consult historical assessments about the harm of rape in order to determine whether a particular act falls within the category. In Baby's trial, the court - relying on the same reasoning by the highest court in a 1980 case - determines that historically, people would have felt that once penetration had occurred, the "damage" (of deflowering the previously intact and pure woman) was done.

Put differently, historically, the status of a woman who had been having consensual sex with a man was already that of damaged goods, and nothing she might say or do after that point could retrieve what had been lost - in the court's words, she "could never be 're-flowered.'"

The fact that this conception of women and of why raping them is wrong is utterly offensive to our current constitutional order played no apparent role in the court's interpretation of this statute.

In the same way, people living in the South when the criminal law was codified might have viewed a woman descended from black slaves as falling outside the scope of the rape law's protection, particularly when a white defendant was concerned.

One might just as readily, then, modify the words "engages in vaginal intercourse with another person by force against the will and without the consent of the other person" as implying "engages in vaginal intercourse with another person who happens to be white by force against the will and without the consent of the other person" as modify it as implying "engages in vaginal intercourse with another person whereby the act of penetration itself is by force against the will and without the consent of the other person."

The Maryland Supreme Court Should Reverse This Decision

Neither construction is required, and both rest on ugly prejudices that in the past made people believe that the harm of rape turned on a victim's status (white race or essential chastity), rather than on the right of every person to decide whether, when, with whom, and how long to permit his or her body to be shared with another person.

The highest court of Maryland or the state legislature ought accordingly to revisit the definition of rape and reject the intermediate appellate court's judgment.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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