Yes, yes, yes . . . NO. Welcome to the new definition of rape, according to the Maryland Supreme Court. Per the Baltimore Sun (courtesy of Bashman),
The state’s highest court ruled yesterday that a man can be charged with rape if he ignores a woman’s calls to stop – even if she had previously consented to sex.
With this expansion of the legal definition of rape, Maryland joins seven other states whose courts have determined that a woman can revoke her consent after intercourse begins.
So much for a bright line test.
The unanimous ruling was grounded in a woman’s autonomy to make decisions about her body, which is certainly something that almost everyone can agree upon. But.
“This goes to the heart of women’s autonomy,” said Lisae C. Jordan, legal director of the Maryland Coalition Against Sexual Assault, which filed a brief in the matter. “It says that, yes, women do have the right to make decisions about something as intimate as sexual intercourse.”
No argument here. A woman absolutely has the right to give or not give consent, and similarly has the right to withdraw consent whenever she decides, for any reason or no reason.
But consider the flip side, creating a rapist out of a man to whom consent has been given to have sex when, in the midst of the act, the woman changes her mind. Or says she changes her mind. Or maybe claims afterward that she said she changed her mind. Or maybe just thought it to herself. Or later got angry because the man didn’t call like he said he would.
The myriad of possible problems with this scenario are endless. Bear in mind, this is not merely about the woman’s right to make decisions for herself, but her ability to convert her erstwhile lover into a lifetime sex offender in the wink of an eye. Talk about sexual leverage.
“This is a dangerous ruling,” he said. “What the court is saying is that every act of sexual intercourse in Maryland is potentially a rape, and if a man doesn’t stop on a dime, he’s going to jail.”
And this is under the best of circumstances. On the other side:
But women’s advocates and lawyers said the high court’s ruling was important because it makes clear that Maryland no longer relies on outdated common law in rape cases.
“Common law is an antiquated system where women had less rights,” said Marie Lilly, an educator at Turnaround Inc., a Baltimore-based nonprofit for victims of sexual assault and domestic violence. “This brings us into the 21st century.”
Maybe I’m just old-fashioned, but this is lunacy. Not because women should have sexual autonomy, but because this turns men into rapist miscreants who, a moment earlier and when they started, did nothing wrong. Aside from what this means for the sex offender registry problems, it imputes a moral culpability where none should exist.
This is over the line.
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What good is “the right to withdraw consent whenever she decides, for any reason or no reason” if this right has no force of law behind it?
I’m sure you don’t think that after a woman asks to stop, a man can continue to force himself on her. So if the man continues after “stop,” at some point it ought to be a crime.
I realize there’s a lot of room for he-said/she-said confusion here, and there are lots of opportunities for the woman to change her mind after the fact, but wasn’t that just as true before this law was passed?
Did the law have no way to deal with this situation before this change? Should it be a lesser crime? Should the new law be loaded up with adverbs—“knowingly”, “willingly”, “blatantly”, “forcefully”, “voluntarily”, “egregiously”—to emphasize to the judge and jury that the crime is more than just taking a moment to wind down?
In this case, the guy continued (according to the woman’s testimony) for another 10 second. GUILTY!
Is that what you mean by “continues to force himself on her?”
There obviously has to be some allowance so men (or women) have more than a “moment” to withdraw before they are guilty of committing rape. But doesn’t that already exist in the mens rea requirement?
To take one of your examples, if the woman just “thought to herself” that she withdrew consent, I can’t imagine how the man would have the mens rea to be guilty of rape, although no doubt he committed the actus reus. Likewise, if she withdrew her consent verbally the man wouldn’t immediately be a rapist, because he would not have the necessary mens rea if he stopped as soon as he knew she no longer consented.
Now, no doubt it’s possible that some alleged victims will lie, but I’m not sure how this change in the law makes things any worse. How many people can there really be who aren’t prepared to lie and say they never consented, but who will lie and say they withdrew their consent? I can’t imagine it’s a large group.
Now, if the person claiming to be the victim is prepared to lie, there is obviously a high risk of a wrongful conviction in rape cases. But that is true regardless of this change to the law, and it’s true for many other crimes too. I for one can’t see how this hypothetical danger means it should be legal for a man to rape a woman for half an hour because she initially consented.
The mens rea is satisfied by a man’s continuing to engage in the conduct after the woman has withdrawn consent, even though there’s very little mens in the rea.
I wasn’t think of the woman lying (something that can happen in any case) when I wrote that she “thinks” of it, but more a matter of a woman believing that she had communicated withdrawal of consent under, let’s call it, difficult circumstances, where she may not have spoken aloud even though she thinks she did, or may have been far less clear about her intent than she believes.
This situation has way too many problems and obstacles to clarity to serve as the foundation for a crime, notwithstanding the right to withdraw consent. We’re not talking about the man getting smacked for being a cad, but a man going to prison for committing rape.
I’m from Canada, so although I regularly read your blog and think “I’m glad we don’t allow that here” I’m not that familiar with American criminal law.
Is there really no mens rea requirement for rape? That’s up there with acquitted conduct sentencing in my “thank God not in Canada” category. It’s rape if a woman didn’t consent even if she said she did, and the man had no possible way of knowing she didn’t? That seems to me to be incredibly unjust.
I read the decision, and the jury instruction didn’t talk about mens rea, but it did say that the accused had to have used either force or the threat of force. Given that requirement, I can’t see how a jury could find that the man thought the woman consented and still convict.
So you’re from Canada, eh? Sorry, couldn’t resist.
There is a mens rea requirement in theory, but the instructions versus the theory is different. I assume that if the woman first consented, then changed her mind but admitted that she didn’t announce the withdrawal of consent, then there’s no rape.
I fear that when withdrawal occurs on one side and not the others (get it?), but the communication of withdrawal is neither as clear nor as verbal as the sender “remembers”, we have a very embarrassing situation, two sides secure in their belief that they are right, and some real bad problems. I can think of numerous permutations on this theme, screaming certain words, the meanings of which change in mid-stream, for example.
So once there is what is believed to be, or arguably is, withdrawal of consent, without withdrawl of anything else, is it mens rea or mens issues?
I see what you mean about the theory versus the actual jury instructions. They’re completely inadequate, eh?
I’d thought all the problems you mention weren’t serious issues, because there wouldn’t be the mens rea for a conviction, but with those instructions I can see the problem.
Yet another reason for me to prefer Canadian criminal law; if a jury instruction doesn’t deal with an essential element of an offence the conviction will be reversed.
Arg. I must have been interrupted (darn paying job) because somehow I had it in my head that this was a statutory change. I didn’t realize there was an actual case.
Nevermind.
Reading the news accounts of the case, however, it sounds like something strange is going on. She gave consent to sex, but that was right after having sex with another guy, and that guy plead to rape.
That doesn’t sound like freely-given consent to me, but it’s probably hard to prove. Maybe the prosecutor is using the issue of stopping to sneak a conviction in the back door?
…Gives a whole new meaning to ” Don’t Stop !. Don’t…Stop ! I wonder if this applies to the fairer sex. He say’s ” Get off me ” and she says ” But I’m almost…wait….
..Guilty ! Beyond a reasonable shout.
The problem, Mark, is that a new rule has been created for New York, and it’s the application in future cases, not just here, that presents the greater problem.
But who would want to be the first male complainant?
Another hard case making a bad law?
Exactly. That case is over, but the bad law lives on.
…Some guy Brittany picked up in a bar tonight. Some poor guy who really, really needs the publicity to jumpstart his career.
New York? Are you saying that you guys take this “sister state” thing seriously?
On point: I agree with you. I think it makes convicting much easier, injects a requirement into the statute will be almost impossible to disprove, and generally makes the life of a defendant and criminal defense lawyer that much more difficult.
In other words, this decision was completely unnecessary.
I must have lost my head in the heat of passion. Not New York (thankfully), but Maryland. Oy, what was I thinking (and what was I thinking with)?
The issue of rape here only arises because she withdrew consent and he did not stop instantaneously. Read the facts of the case as laid out in the ruling. This could happen to a whole lot of teenagers.
If you have a teenage son who is a bit on the wild side, be very very afraid. A small slip up like this could land them in jail for 15 years or perhaps even life.
This girl was smoking pot with these boys she is 18 they are both minors. Is there a crime such as contributing to the delinquency of a minor?. Does this not mean that she had motive to claim rape? After all, absent a crime by the boys, she was the one contributing to their delinquency.
Stealing Sex, the New Frontier?
As if there aren’t enough problems with sex offender laws, a post over at Feminist Law Professors
Stealing Sex, the New Frontier?
As if there aren’t enough problems with sex offender laws, a post over at Feminist Law Professors