Right after I started this blog, the Maryland Court of Special Appeals issued an opinion in Maryland v. Maouloud Baby. The court held that a person couldn't withdraw consent from a sex act once that sex act had begun. The court used some really odd rationales for its opinion and I posted about the case on several occasions. Thankfully, the Maryland Court of Appeals reversed the intermediate court's decision and put Maryland in line with the rest of the country regarding withdrawal of consent. Here is a portion of the decision:
While it certainly may be the case that the common law’s focus on penetration was somehow originally related to the “de-flowering” of virgins, a search of early English case law and scholarship reveals that by the time Maryland expressly adopted “the rules of the common law of England” in 1639,14 the English law of rape had evolved beyond the understanding of rape as merely a trespass upon a man’s property. Before Maryland adopted the English common law, penetration could no longer be said to represent the completion of the harm caused by rape, although it was still focused on as sufficient evidence for the required element of vaginal intercourse....
We conclude that post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape. We also hold, however, that the trial court erred in failing to sufficiently address the jury’s questions on post-penetration withdrawal of consent, and such error was not harmless beyond a reasonable doubt.
I actually assigned the Court of Special Appeals opinion to my Criminal Law class a couple of weeks ago to illustrate the differing approaches courts take in theorizing the meaning of "consent" in rape statutes. Next year, I will be teaching a Sex Crimes Seminar and I expect I'll include both the intermediate court and highest court opinions in the case. I'll pair those readings with the opinions from the same courts in State v. Rusk. As I told my class this semester, you can learn almost everything about how rape law can go awry just by studying those big Maryland cases.
Hello -- I can't seem to find this anywhere. Did Mr. Baby get released from prison? If so, how much time did he end up serving?
Thank you!!
JD
Posted by: JD | September 23, 2009 at 08:53 PM