One of the very first issues I wrote about when I started this blog was the Maryland case of Maouloud Baby which concerned whether a woman could withdraw consent to have sex. It appears many months later, Time Magazine has an article on the case. From the article:
But the appellate court, citing a 1980 rape ruling based on the English common-law idea of "the initial de-flowering of the woman as the real harm," unanimously ordered a new trial, essentially stating that how fast was not the issue, nor was whether the accuser had said no during intercourse. In Maryland, rape is determined at the beginning of the sex act, and therefore consent is officially given at that point. The court wrote, "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."
This logic has inflamed feminists and editorial-page writers. "The decision is philosophically from another century, from a time when our rape laws were based on the concept of women being property of men," says Berkowitz, whose organization will push for a legislative remedy if Maryland's highest court doesn't reverse the ruling. In the meantime, the defendant is serving a five-year sentence, and the legal world continues to debate how quickly--if at all--a man must go when a woman says no.
It is good to see this rape case which raises important questions about how someone views sexual violence gaining greater media attention. As I noted at the time, I thought the decision was wrong-headed and the court seemed to playing some odd games in interpreting the law. I'm curious to see how successful efforts are in Maryland to get a legislative fix to this court decision (since the court's reasoning was essentially to blame the legislature and an earlier court decision on the issue).
I still have trouble understanding this case. The opinion seems to reference feminist amicus curie without quotes, and then there seems to be a feminist backlash against the references as if they are the Court's original opinion. What's more, the case seems not a good one for feminists. The man stopped within seconds when asked to, which is what feminists have always rightly demanded, but now the issue seems to be "How many seconds?" Women who suffered brutal rape may find this rather trivial in comparison.
Someone please explain this.
Posted by: George | February 06, 2007 at 03:54 PM