A Little Bit of Maryland Rape Law History

The recent decision by the Maryland Court of Special Appeals is not the first time a Maryland appellate court has triggered a backlash because of a rape law decision.  State v. Rusk is one of the most (in)famous cases in rape law.  In Rusk, the Maryland Court of Special Appeals issued a decision which has been the subject of significant legal scholarship over the last 25 years.  The court held that verbal non-consent, menacing behavior, and "light[]" choking did not constitute rape as a matter of law

One of the oddities of Rusk was that at every level of review by the courts, the dissent and majority opinions differed so strongly about the facts of the case (which is not something appellate courts should normally be doing in an "ideal" world).  Professor Peter Brooks explained Rusk this way:

How can these four stories, based on the same “facts”— none of the principal events of what happened that night was in dispute—have different outcomes? The answer, I think, is that the narrative “glue” is different: the way incidents and events are made to combine in a meaningful story, one that can be called “consensual sex” on the one hand or “rape” on the other.

This idea of how narratives determine the outcomes in rape trials is something that I and several other authors (Crenshaw, Taslitz, Ehrlich, Schulhofer, Cuklanz) have studied in detail.  In the recent opinion, there are many attempts to recast the narrative of the trial into something that supports the holding in the case.  For example, the court wrote:

After Jewel acquiesced to the boys’ insistence that they stay ten more minutes, she found herself on her back with appellant removing her jeans and Mike sitting on her chest, attempting to place his penis in her mouth.

The above quote uses a couple obfuscatory techniques.  "She found herself on her back" is passive voice used to remove agency of who put her on her back.  "Acquiesced" is meant to indicate consent, but could easily have been written as "surrendered" by a court holding the opposite way.  The opinion is full of little examples like that whereby the victim's narrative is recast as a story of confusion and consent.  While the recent decision is very different than Rusk, the narrative choices made by the court show that some things do not change (at least in Maryland).

Comments

[Daniel]

The real and never very much discussed problem is that privileged narratives cut both ways. You say the decision was "recast" but that in itself represents a privileged narrative. How do you know it was recast; maybe that is what in fact actually happened. Where you there as a witness? If not, you are merely saying that your idea of what happened does not match the judges. Fair enough. But be honest about that and stop trying to recast narratives you don't like with derogatory words like "recast". The knife cuts both ways.

[Corey Rayburn Yung]

Daniel Thomas, I think you might be reading a little too much into my post. If "recast" is a "derogatory word," then I think you are applying a very low threshold for what is "derogatory." I absolutely agree with you that any attempt (including my post) to describe past events based on trial testimony is an interpretative endeavor, and thus "recasts" the narrative.

The question I raise in my post is like that of Peter Brooks, why do the "recasted" narratives in rape cases differ so strongly?