Sex Crimes

For Want of a Translator

From the Washington Post:

A 7-year-old girl said she had been raped and repeatedly molested over the course of a year. Police in Montgomery County, acting on information from a relative, soon arrested a Liberian immigrant living in Gaithersburg. They marshaled witnesses and DNA evidence to prepare for trial.

What was missing -- for much of the nearly three years that followed -- was an interpreter fluent in the suspect's native language. A judge recently dropped the charges, not because she found that Mahamu Kanneh had been wrongly accused but because repeated delays in the case had, in her view, violated his right to a speedy trial.

See here for more of the story.

More on Juvenile Sex Offenders in Maryland

Prevention Works in response to the recent article in the Washington Post that I blogged about wonders about the implications of Maryland's bill to put juveniles on the sex offender registry:

My internal monologue could run this debate for days. But, I believe there is a more important issue here: the Maryland law could pave the way for trying teens as adults for committing nonviolent juvenile sex acts (consensual sex among teens or statutory cases) and deeming them sex offenders. In other states, statutory cases involving 17 year-olds (e.g., a high school senior engaging in sex with a sophomore) have resulted in imprisonment and sex offender status. Can we trust lawmakers to draw a defining line between these instances of sex and violent sex acts?

Furthermore, can we assume that lawmakers won’t use this violent youth sex offender law to craft holistic legislation for trying kids as adults? If a 12 year-old rapes a three year-old, will the legislature fight to reduce the age for adult trial further? While we all must take responsibility for our actions and be prepared to face the consequences, is it just to take a kid’s entire life for a crime he or she may not be able to comprehend? Is there a way to explain the breadth of the injustice, and rehabilitate the young offender, without sentencing him to 55 years in prison?

A reader also sends along this link to a site that has compiled an array of material about the issues raised by juvenile sex offenders.

Maryland Make Include Juveniles on the Registry

From the Washington Post:

Prompted by the case of a 13-year-old Bethesda boy who sexually abused two young boys in his care, Maryland lawmakers are considering legislation that would remove the protection of privacy for juvenile sex offenders.

The bill would require juveniles to be listed in Maryland's sex offender registry if they were at least 13 when they committed their crime. In a departure from the judicial practice of guarding the confidentiality of young offenders, judges would be allowed to unseal the juvenile's criminal record for police and other law enforcement authorities with the goal of disclosure to the community.

The measure is one of several the General Assembly is considering this year to crack down on sex offenders after the passage last year of a broad law that enhances penalties for and monitoring of convicted adult offenders. Lawmakers who sponsored Jessica's Law -- modeled on a Florida law passed after a 9-year-old girl was killed by a convicted sex offender -- are back this year with a proposal to restrict mandatory minimum sentences by denying parole in the most egregious cases.

As the article makes clear, as with many sex offender laws, the bill was prompted by a single crime.  I think lawmakers might be better served if they didn't simply latch onto an outlier case as the basis for making substantial changes in criminal laws.

TalkLeft on Maouloud Baby Case

TalkLeft has posted about the Maouloud Baby case in response to the Time Magazine article I posted about earlier today.  This is what Jeralyn at TalkLeft had to say:

That is totally illogical to me. If it starts to hurt, or there's no protection, and he doesn't pull out, it may be unwanted sex at that point but it's not rape. Let's not trivialize real rape to accomodate definitions of consensual sex gone awry. Make up a new crime for that if it's going to be illegal. But to brand someone as a sex offender for life, require sex offender registration, submit them to possible life sentences? Come on.

I have to say that I'm a bit confused about this post.  I think it conflates some issues together and misses some of the consequences of the Maouloud Baby decision. 

First, the argument that once a woman consents to sex, she can't withdraw that consent closely parallels previous claims made against rape laws that once a woman kisses a man/goes to his apartment/wears seductive clothing/flirts/engages in foreplay, then a man can presume consent.  Thankfully, those interpretations of rape law are largely relics of a past era.  One could respond that those prior analogies are not appropriate because in this case consent to sex was actually given, so there was no presumption on the part of the defendant.  However, this line is not as clean as it may appear.  In the marital rape situation, we no longer presume consent to sex in a particular instance because of prior consent.  TalkLeft seems to be supporting a "consent lasts for the duration of the act" standard.  However, I can't see where that interpretation is supported by any statutory language.  And I think TalkLeft's statement that "it may be unwanted sex at that point but it's not rape" illustrates how problematic such a hypothetical standard would be.  What, after all, is the difference between "unwanted sex" when a victim says "no" and actual "rape?"

Second, if we accept the Maouloud Baby rule, then a man is free to continue to force intercourse on a woman for any duration after consent has been withdrawn.  That means we are not talking about an instance where a woman says "stop," a man takes a couple seconds, and then he withdraws.  Instead, under Maouloud Baby, a man is free to answer pleas of "stop," with a simple "shut up" and continue.  Admittedly the facts in Maouloud Baby were not the especially egregious case, but I don't see how the rule in the case can be read any other way.

Third, this is HIGHLY unusual case.  Withdrawal of consent cases are virtually nonexistent.  This case was unusual because both parties largely agreed upon what happened.  That, in itself, makes for a very unusual rape case.  So, as with most unusual/hard cases, I think it is a big mistake to create a much further-reaching rule based upon an anomalous fact pattern. 

Fourth, if TalkLeft's concern is really just the "rape," label, then I think that is a fair criticism.  Perhaps the defendant, in these narrow fact circumstances, should have been charged with a lesser offense.  However, it should be noted that many states don't even use the word "rape" in their statutes.  Instead, different degrees of "sexual assault" replace the crime traditionally known as "rape."  And while the word "rape" carries a lot of baggage, a man who doesn't stop when a woman asks certainly may deserve that label in the same way a man who has sex with a severely drunken woman does.

Fifth, the criticism that the punishment is too severe to this defendant's indiscretion conflates the guilt and penalty issues.  I certainly agree that the sex offender label is too widely applied and the life-time use of it in various sentencing/regulatory schemes is problematic.  However, it strikes me that one can oppose those harsh sentences, support a lesser sentence in this particular case, and still think the rape statute should not be interpreted in the way the Maouloud Baby court did.

However, TalkLeft had more to say which softens my criticism somewhat:

I also don't agree that the problem is with the word "immediately." It's with the communication of the initially consenting person's demand for cessation. Only if the demand for withdrawal was clearly and unequivocally communicated to the partner, who then forcibly continued, should it be construed to be forced or unwanted sex.

My reading of the facts of Maouloud Baby was that the withdraw was definitely not immediate, but it wasn't incredibly long either.  If TalkLeft is defending the idea that a man may have a "reasonable" period of time in which to withdraw, then that doesn't strike me as a horrible rule.  However, that isn't what the Maouloud Baby rule is.  So, perhaps with further clarification, I may find some middle ground with Jeralyn at TalkLeft on this issue, but right now I find the post very problematic, particularly the first paragraph.

Maouloud Baby Case in Time Magazine

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). 

HT: Feminist Law Professors

The Homelessness Problem

A Maryland court was forced to confront the issue of how homeless sex offenders can comply with the requirements of that state's registry requirements.  Their answer?  Homeless sex offenders are exempt:

Sex offenders who are homeless are exempt from laws requiring them to register a change of address with state officials, Maryland’s high court ruled Wednesday.

The Maryland Court of Appeals said in a pair of unanimous rulings that it would be impossible for the homeless to comply with provisions of the state sex offender registry.

I wonder how this problem is addressed in the probation context (if anyone knows, please email me).  The article notes that Washington has specific statutory rules governing homeless sex offenders.  I expect we will see other states without specific homelessness provisions (which I think is most states) confronting similar lawsuits.

Thanks to eAdvocate for letting me know about these cases.

Update:  You can find the decisions here and here.

More on Maryland Withdrawal of Consent Rape Case

Professor Sherry Colb has an article on Findlaw.com about the withdrawal of consent case in Maryland about which I blogged before.  From the article:

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.

Professor Colb also focuses on the use of precedent and history in the opinion which is something I found notable as well.  She wrote:

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."

More on Maryland Rape Law

The Washington Post has an article addressing the significance of the decision in Maryland that I discussed here and here.  From the article:

In its decision, the appeals court notes that Maryland, like North Carolina, has held on to the legal view that a woman cannot be raped after she has agreed to have sex. In those cases, defendants can be charged with sexual assault.

HT: Howard

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).

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