Withdrawing Consent in Maryland

The Maryland Court of Special Appeals, Maryland's intermediate appellant court, issued a ruling yesterday in a rape case addressing the legal issue of whether consent can be withdrawn after penetration.  The court seemingly concludes that consent cannot be withdrawn after penetration (although, in dicta the court found that consent could be withdrawn between different sexual acts).  I say "seemingly" because the court expends considerable effort drawing distinctions and discussing similar cases in a way that tends to obfuscate the extent of its holding.  In this case, the actual issue was a judge's answer to a jury question about the issue.

The decision is "odd" in many regards.  The court spends a lot of time reviewing prior case law and the evolution of rape law.  At times, it attempts to appropriate feminist arguments of consent to support its decision.  One of the more illustrative sections about the history of Maryland's rape laws is on page 30 of the opinion:

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.

It seems an unusual course to recognize that rape law was derived from an era when women were viewed as property and then to use those historical roots to support a decision.  The court tries to portray its decision as an act of restraint deferring to the high court of Maryland and the legislature.  However, if you read the opinion, you will notice the great lengths the court goes to distinguish the case before them from every other case cited by the parties.  The court also spends a lot of time dissecting prior opinions to determine what is "dicta" and what is the actual holding of those decisions.  At the end of all of that, the Maryland court renders a decision that is a reminder of an uglier time in rape law history. 

HT: Feminist Law Professors and Howard

Comments

[Hmm...]

Yes, but if one can withdraw consent in the midst of acts, the court would have to get involved in a lot of cases where Person A and Person B consensually entered into sex and Person A and Person B ended up on unfriendly terms, but now one of them is claiming a rape occurred at some point in time during an act only Person A and Person B were present for and both agree began consensually. Why would the court want to criminalize miscommunications or add the threat of blackmail to one-night-stands, etc.

[Corey Rayburn Yung]

Hmmm..., I don't think the problem you identify is unique to a legal rule like the one rejected in Maryland. False allegations of rape after the fact do not need rely on a withdrawl of consent theory. If someone is truly inclined to make a false allegation, which is a rarity in itself, that person would still be better served in describing a rape where consent was never given because a jury is probably more inclined to believe that story.

What makes the recent Maryland case relatively unique is that the difference in testimony about the withdrawl of consent is slight and so the issue of the jury instruction was mostly a "legal" question and not a "factual" one.

[Daniel]

I agree with the Maryland Court though not with its reasoning. The problem is simply one of discreetness. I don't believe that the courts should get involved in an issue of when an act as inherently intimate as sex begins and ends. As a matter of law, once consent is given it seems to me that significant and obvious actions (not just words) must be made to break off the act. Sex is by defination an intimate physical act and to put courts and juries in the middle is not only bad policy, in some ways it is mentally ill.

[Corey Rayburn Yung]

Daniel Thomas, your argument was previously deployed for those opposed to recognizing marital rape. The argument then was that "consent" was given by virture of the agreement to marry. The very act of defining "rape" necessarily includes a court "get[ting] involved in an issue of when an act as inherently intimate as sex begins and ends." So, I'm not sure your criticism is really of the people opposed to the Maryland decision as it is to the very structure of rape law.

The part that you quoted from page 30 was both an amazing and despicable exercise in nitpicking on the part of the court. And what for?

The whole thing reeks as another attempt to protect male entitlement, and at the expense of female liberty.

[Tony Papenfus]

The court of maryland stated that once a woman gives consent and after penetration has occurred she can not claim that she was raped. The court was right but not agreeing with this case. Sure there have been many times in the past where a woman claiming she was raped has some sort of motive for some kind of retaliation on the basis on a disagreement, etc.