Although I am not a lawyer, I have been spending quite some time reading about sexual crimes in my new home state of Maryland, prompted by a recent news story (first brought to my attention at Feministing and analyzed further at The Happy Feminist) about a state appeals court decision in which it was concluded that sexual consent cannot be withdrawn by a woman after vaginal penetration has occurred. The news article is both technically correct and rather misleading — the decision was somewhat complex, and a rape conviction was not "thrown out" specifically due to that conclusion, but the conclusion was made, and after some investigation, it's not the only problem that Maryland law has with sex crimes and consent.
The Background
From the bits quoted in the appeals court decision, the underlying case appears to involve something of a grey area. The complainant was an 18-year-old college student who ended up in a car with a pair of 16-year-old boys after a party failed to take place as expected, and there was a sexual encounter involving at first both boys (non-penetratively), then just one boy (penetratively), and then the other (possibly penetratively, though it is unclear, and I mention the specifics only because they turn out to have strange consequences in Maryland's criminal law). The case deals only with the second boy (the encounter with the other boy, which occurred when the second boy left the vehicle, was nonconsensual, and the first boy entered a guilty plea on rape charges). In the second case, the testimony is in agreement that the girl consented to sex as long as the boy stopped when she said to. There is a discrepancy in testimony about what happened next: the girl claimed that as he was attempting to penetrate her, she asked him to stop and tried to push him off her and he tried to continue for another five seconds before stopping, and the boy claimed that she never actually asked him to stop, but that he was having difficulty penetrating her when she sat up, and he took that as indication to stop, and did. It was noted during questioning of the victim that there was at a minimum social coercion involved, although there was at no time with the second boy any threat of violence:
Q. Did you feel like you had a choice?
A. Not really. I don’t know. Something just clicked off and I just did whatever they said.
The Decision
The appellate court review revolved around a hypothetical question that the jury asked of the judge during deliberations that the judge refused to answer:
“If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind and the, “I think it is, “man continues until climax, does the result constitute rape?”
The judge in the original case held that "the sex act" was ambiguous: that the jury could be referring either specifically to the motions of penetration or generally to all aspects of sex including any foreplay, etc., and as the answer would differ depending on the way that ambiguity was resolved, refused to provide an answer, simply pointing the jury back at the previous instructions given about what defines the elements of rape. He based this decision on a previous case, Battle v. State, 287 Md. 675, 683–85 (1980), which was reversed primarily because a question using the words "during the course of the action", rather than "during the course of the sex act" but otherwise identical, was deemed ambiguous. The next morning, the jury asked a variation of that question:
“If at any time, the woman says stop, is that rape?”
The judge decided that it was effectively the same question as the previous night, and responded with:
“This is a question that you as jury must decide. I have given the legal definition of rape which includes the definition of consent.”
The appellate court decided that an absolute certainty as to the meaning of a jury's question is not a pre-requisite for a judge to be required to answer, and that furthermore that "action" might be ambiguous but that "sex act" referred specifically to intercourse on plain reading, and thus even the judge's decision that it was ambiguous was wrong. It came to the conclusion that the judge's instructions were therefore confusing to the jury, and that therefore a retrial was warranted.
Although the above decision was already completable just based upon the above, the court also decided to answer a claim by the state during the appeals process that even if "sex act" specifically refers to penetration, consent before penetration does not vitiate the crime of rape that occurs if one party fails to stop when consent is withdrawn. (It should be noted that although the state made this argument during the appeals process, there would be no ambiguity in the answer to the jury's first question if the trial judge actually believed this at the time.) The controversial part of this case comes from the appellate court's decision that once penetration has occurred, consent cannot be withdrawn for the purpose of determining guilt of rape. Although it is not applicable to this particular case, this has an obviously terrifying result: if a woman decides for whatever reason that she wants to stop having sex after consensual penetration (it hurts, she's just discovered that her partner is cheating on her or has a veneral disease, etc.), and the partner decides to hold her down, crying and screaming, until he reaches his own climax, it's still not rape.
This result is so awful that one wonders how on earth the court could have reached it.
The Common Law
The controversial conclusion is not part of the law as most people understand it: there is no explicit part of the criminal code that delineates whether or not sexual consent can be withdrawn at any particular point in time. You cannot look up the articles of Maryland criminal law and find anything at all on the topic. What the appellate court's answer stems from is common law: non-codified, non-statutory rules based upon social customs, traditions, and prior precedent. Originally, it stems from the English common law of distant history, but has accumulated the traditions of the United States from the last two hundred years as well.
So far, only Illinois has actually written legislation on "post-penetration rape", as it is termed, but nine states have addressed it judicially based upon common law. Seven states (Maine, Connecticut, California, South Dakota, Minnesota, Alaska, and Kansas) have unequivocally supported it, and two (Maryland and North Carolina) have not. In Maryland, the main case providing precedent for this is once again Battle v. State. In the appeals documents, the state claimed that the entire discussion of post-penetration rape in Battle was dicta — mere commentary from the judge unrelated to the actual decision process that does not set binding precedent. The appeals court, however, found that the analysis of the issue in Battle was quite large, unlike most dicta commentaries, and although it had been quoted as "arguably dicta" in State v. Siering, 35 Conn. App. 173, 644 A.2d 958 (1994), it was referred to as part of the holding in State v. Bunyard, 31 Kan. App. 2d 853, 857, 75 P.3d 750, 755 (Kan. App. 2003). The Baby appellate court then decided two things: that the Battle discussion wasn't dicta, and that it didn't matter anyway because the answer stemmed from ancient common law not yet overturned in Maryland. It may need a professional legal scholar to validate the correctness of this: as in this appeal, the appeal of Battle was fundamentally decided before addressing the issue, but as in this case, the analysis is both large and at least solidly related to the decision. If the discussion of post-penetration rape in Battle is to be declared dicta, then so is the discussion of post-penetration rape in Baby, the case we are examining now. Also, I'm not sure what the legal histories have to say about which takes precedence when no local precedent exists withinin the jurisdiction: recent legal authority from other jurisdictions, or common law as historically practiced within the jurisdiction. Those experienced in criminal law are invited to comment.
The issue of precedent is made even more confusing by the fact that Maryland uses a slightly different heirarchy of courts: although both the court that reviewed Battle and the court reviewing Baby here are appellate courts, they are not on the same level: the court that reviewed Battle was a "Court of Appeals", while the court reviewing Baby is a "Court of Special Appeals". The difference? In most other states, the "Court of Appeals" would be referred to as the Supreme Court: although a case does not have to pass through a Court of Special Appeals to reach it, the precedents of a Court of Appeals are binding upon all lower courts, including the Court of Special Appeals.
If Battle is in fact to be considered binding precedent then the Court of Special Appeals reviewing Baby is correct in following that precedent even to an unjust end: only the judges of the Court of Appeals or an en banc collection of all of the judges of the Court of Special Appeals at once have the authority to overturn that precedent, and it is the law in Maryland, not the majority of the rest of the states, that applies when it exists. That that part of Battle was wrongly decided is not for this appellate court to say, though unfortunately it would appear that it actually went so far as to agree with the reasoning in Battle.
So what was the reasoning?
Archaic Law
The state, in its arguments to the appellate court, made a fairly succinct analysis of the basis of the disregard of post-penetration rape in ancient common law, and the reason why it should be disregarded:
The rationale undergirding the principle that consent, once given, cannot be retracted, it [the state] maintains, is rooted in the historical notion that, because women were, in legal contemplation, chattel, loss of chastity was considered to be a devaluation of a mans property; and that the more enlightened view espoused by feminist scholars, medical practitioners and victims militates against a legal theory that a defendant is entitled to persist in intercourse once consent is withdrawn.
The appeals court in Baby acknowledged this basis, and even expanded upon the history of this in a footnoted passage:
The concept, undergirding the Battle holding, rooted in ancient laws6 and adopted by the English common-law, views the initial deflowering of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party - the father or husband. This initial violation of the victim also provided the basis for the criminal proceeding against the offender.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 males interest in a womans 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 States highest court or by statute.7
(Footnote 6 traces the origins back to Biblical and Middle Assyrian laws, and 7 discusses the adoption of common law, neither of which needs to be quoted here.)
Despite the obvious abhorrent archaism of this concept, the Court of Special Appeals affirmed it, in part because it's also followed up by another line of reasoning in Battle. That reasoning, missing any prior precedent on the ability to withdraw consent after penetration, focused instead on prior precedent on the ability to grant consent after penetration has been made when it was not present beforehand. That had come up in several cases, and the courts had fairly consistently held that the crime of rape does not become any less a crime just because of the forgiveness of the victim. The reverse, the courts decided, must also be true: if the crime is complete at the moment of penetration, then it doesn't matter if consent is withdrawn subsequently, as you cannot retroactively declare something to have been done without permission.
If it weren't for the fact that this allows for a situation where someone is held down, kicking, crying, and screaming, until the partner decides it's over, that would almost seem logical, and in fact the Court of Special Appeals seems to agree with it. So what's wrong with the reasoning?
Why Rape is a Crime
The problem is that the state's analysis is entirely correct even with respect to the second line of reasoning, and is operating at a level just beneath the prejudices of both of the appellate court judges. The issue stems from why the act of rape is a crime — if you instinctively think of it as vandalism of virginity, then penetration matters, and if you think of it as a crime against the sexual autonomy of a human being, it doesn't. Following the latter as a guide, the reason why rape does not cease to become rape with subsequent forgiveness of the victim is that the violation actually happened: the victim's sexual autonomy was, in fact, violated, and even if the victim subsequently decides that it wasn't that bad, the state has a vested interest in penalizing that action for the sake of the deterrent effect — you don't want would-be rapists to give it a go because they think the victim might forgive them afterwards. In the reverse, however, this does not continue to hold: up until the point where consent is withdrawn, whether or not there is penetration there has been no violation of sexual autonomy. As soon as it has been communicated that consent is withdrawn, however, the violation occurs if the partner does not heed that with reasonable haste. (What constitutes "reasonable haste" is another question entirely, and even one relevant to the original trial, but not one relevant to the appeal.)
By this measure, then, the conclusion about the (non-)existence of post-penetration rape in both Battle and Baby is wrongly decided. At this point, however, it will take either legislation or the Maryland Court of Appeals to overturn. Fortunately, legislation may be on the way. Delegate Jean Cryor of Montgomery County, Maryland, has claimed that the Women's Caucus of the General Assembly is likely to take a closer look at this decision during the next legislative session. Unfortunately, if all that is examined is this decision, the legislation may not go far enough. Now that the results under common law have been examined, it's worth looking at what has been specified under the written criminal law of Maryland, and it turns out that there are serious problems with that, too.
Maryland Criminal Law
The specific statutes relating to sexual crimes in Maryland are available on the web, but they are somewhat poorly indexed and linked. Fortunately, accurate summaries are available from the Maryland Coalition Against Sexual Assault (MCASA). The most immediate problem is the stringent requirements by the statute for a crime to be considered rape.
The Definition of Rape
For both first degree (§ 3-303) and second degree (§ 3-304) rape, the primary requirement is that a person "engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other" and meet another condition. For rape in the first degree (with a maximum penalty of life imprisonment), there must be either a dangerous weapon (or a reasonable facsimile thereof), suffocation, strangulation, or serious injury, threat of suffocation, strangulation, serious injury, or kidnapping, an accomplice, or a related burglary. For rape in the second degree (with a maximum penalty of 20 years imprisonment), there must be mental incapacitation, mental defect, or physical helplessness, or a victim under 14 years of age with the attacker at least 4 years older. Curiously, those two statutes are repeated almost word for word (§ 3-305 and $sect; 3-306) and with the same penalties except under the heading of "sexual offense" instead of "rape", but for oral sex, anal sex, or use of sex toys or other objects (as opposed to vaginal sex), apparently for the sole purpose of affecting how marriage is used as a defense, but more on that later.
For all other forms of sexual assault, it comes under the heading of "sexual contact" and has a maximum penalty of 10 years if it is violent (§ 3-307: same conditions as first degree rape) or 1 year otherwise (§ 3-308). That last category is the only one in which lack of consent is the only determining factor, and thanks to a very specific definition of "sexual contact" which explicitly excludes penetration by "penis, mouth, or tongue", this means that if I am reading this statute correctly, if you are coerced into penis-vagina-only sex by blackmail or social pressure without physical incapacitation or threat of "serious" injury, no sexual crime has been committed at all — it is neither rape (without the violence or mental or physical incapacitation), nor (thanks to the exclusion of penis penetration) even sexual contact.
Thankfully (and a little curiously), instructions to the jury don't seem to follow this. The original trial court judge (Judge Scrivener) in Baby gave the following instructions to the jury regarding force and consent:
The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or threat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistance or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, consent means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.
No mention of the additional factors of threat of serious injury, etc. were mentioned. If this is common practice (the instructions were not specifically commented upon by the Court of Special Appeals, which suggests this might be the case), this weakens the conditions in the statute in practice to the point where they're actually reasonable, but the law almost certainly needs to be rewritten to match.
Non-physical coercion is still an issue, however: implied threats to one's livelihood, social status, or anything else not even capable of gaining consent but capable of inhibiting physical resistance is not covered by statute, and almost certainly also needs to be corrected. It may be covered by common law, but given the treatment of women by common law discussed earlier, I am inclined to be skeptical.
It's Not Rape If She's Your Wife?
The second major problem immediately visible in the statutes is a very confusing section specifically about whether or not you can be convicted of rape if the victim is your wife:
- Except as provided in subsections (b) and (c) of this section, a person may not be prosecuted under § 3-303, § 3-304, § 3-307, or § 3-308 of this subtitle for a crime against a victim who was the person's legal spouse at the time of the alleged rape or sexual offense.
- A person may be prosecuted under § 3-303(a), § 3-304(a)(1), or § 3-307(a)(1) of this subtitle for a crime against the person's legal spouse if:
- at the time of the alleged crime the person and the person's legal spouse have lived apart, without cohabitation and without interruption:
- under a written separation agreement executed by the person and the spouse; or
- for at least 3 months immediately before the alleged rape or sexual offense; or
- the person in committing the crime uses force or threat of force and the act is without the consent of the spouse.
- A person may be prosecuted under § 3-303, § 3-304, § 3-307, or § 3-308 of this subtitle for a crime against the person's legal spouse if at the time of the alleged crime the person and the spouse live apart, without cohabitation and without interruption, under a decree of limited divorce.
I had to go back and compare this to the listed sections a couple of times trying to reconcile (b)(2) in my head, and I eventually came to the conclusion that all of part (b) is basically meaningless thanks to the problem that force or the threat of force and lack of consent is already a minimum prerequisite for § 3-303, § 3-304, or § 3-307 to come into effect at all, for a spouse or otherwise. Not excluded, however, are all of the subsections relating to age restrictions/statutory rape (marriage is a defense against all of these, so if you are married to a twelve year old, it doesn't matter if you're having sex with her at age 40 — though to actually get married in Maryland under the age of 16 requires not only the permission of the parent but the agreement of a judge, which makes this probably only an issue for out-of-state marriages). If the main sections on rape are ever corrected, however, without this section being modified along with them, spouses will still not be protected from non-violent coercive sex.
Notably, the sections on "sexual acts" (oral sex, anal sex, sex toys) is not included in any of this. This leads one to the head-scratching conclusion that the intent of the law was to make sure that a woman was forced to submit to penis-vagina sex with her husband, but had the right to refuse anal sex, oral sex, or sex toys.
What Needs to Be Done
At this point, the only input a Maryland citizen can have into this is in the legislative process. As mentioned before, Delegate Jean Cryor of Montgomery County, Maryland, has claimed that the Women's Caucus of the General Assembly is likely to take a closer look at this decision during the next legislative session, and locals should keep an eye out for anything coming out of that Caucus in the coming term. Once that process begins, letters can be written encouraging change, and checking not only for an explicit right to withdraw consent, but also encouraging modification of § 3-303 through 3-307 to include nonviolent coercion and heavily modifying § 3-318 so that the only protection that marriage grants is against the age limitations. There is no more reason to endorse sexual coercion between spouses than there is between anyone else.
And if you find yourself in the position of being sexually assaulted in Maryland, make sure you resist physically; failure to do so may end up being used against you.
A Second Look at the Original Case
It is a dangerous thing to second-guess a jury based only on a partial transcript. Missing even from the complete record are the manner of speech, nonverbal cues, and other indicators that may affect judgements on credibility or issues of fact. Nonetheless, I find myself somewhat uncomfortable with the outcome: although the first trial of Maouloud Baby ended in a hung jury, the second trial (which reached the Special Court of Appeals) found him guilty of first-degree rape (§ 3-303), first-degree sexual offense (§ 3-305) and two counts of third-degree sexual offense (§ 3-307). There was another incident involving both boys before Baby left the car, which may have involved the charges other than rape, and lacking the details of the testimony on that matter, I am not inclined to comment. On the matter of first-degree rape, however, there seems to be very little in dispute. By both sets of testimony, there was explicit consent granted, and then either verbal revocation of consent followed by compliance within 5 seconds, or nonverbal revocation of consent followed by immediate compliance.
As the latter is about as good a response as one could ask for, a lot seems to hang on those five seconds. What constitutes timely compliance? Even in the act of driving, requiring about as fast a response as is possible to avoid serious harm, distracted drivers were found to take a couple of seconds to respond to a surprise. A good lover should perhaps be as focused as a good driver, instantly responding to a partner's desires, but as a society we aren't in the practice of imprisoning lousy lovers (for starters, we'd never have enough prisons to keep them all). At some point, there must be evidence of intent not to comply. I don't find that 5 seconds meets that standard. Yet it seems silly to try to assign a numerical time limit — five seconds okay, eight seconds not. The jury, asking questions about withdrawal of consent, obviously felt that there was intent to continue after consent was withdrawn, and that a result hinged on whether or not there was a legal difference.
The prosecution in the original case also attempted to place all of the events in the context of non-violently coercive sex: that the verbal consent didn't matter because it constituted not actual consent, but mere submission to sexual assault. I find myself substantially more sympathetic to this line of thought; by the girl's testimony, for whatever social reason, she didn't really feel like she had a choice but to go along with what the two boys wanted. Even in the mind of a horny teenager, there must have been some kind of awareness that unwanted pressure was being applied, and the result is a symptom of a serious social problem: the distinction between invitation, even seductive, tempting invitation and outright repeated pressure to change a negative reaction to a sexual advance is lost. There is ample cause to penalize the latter under the law as a visible deterrent for this social problem.
And yet, I find myself returning to the issue of intent. For a crime with a penalty of such severity, I find myself feeling a need for full intention under mens rea before assigning guilt. At most, I see here recklessness, and perhaps merely negligence — a failure, perhaps a willfull failure, to consider the girl's feelings, but there was an explicitly stated desire not to actually commit rape, and an explicit request for consent, which was affirmed. I'm not convinced that it is in society's best interest to bring the full weight of a sentence for first-degree rape on that sort of error.
It is a dangerous thing to second-guess a jury based only on a partial transcript, and I find the application of common law in this case to be frightening and abhorrent, but I am left not entirely unhappy that the case will see yet another jury.
Excellent Analysis
I found your analysis to be thorough and pretty much agrees with my conclusions after reading the decision.
I found your links to the Maryland state law to be somewhat troubling as well. You note that, strangely, Maryland specifically excludes vaginal intercourse from its list of "sex acts," but I believe that is because it is listed separately in the statute and would therefore be redundant. Most troubling to me, however, is that the "sexual contact" (something that is neither vaginal intercourse nor one of the listed "sex acts", but is for the sexual pleasure of one or both parties) requires penetration by a body part that is not the penis, mouth or tongue into the genital opening (vagina) or anus. Basically, sexual contact is pretty much limited to sticking fingers or perhaps toes into a vagina or anus.
But don't we teach children that improper touching includes the intentional touch (not just with the hands) of a female's breast or either sex's groin area. Does this not fall under the definition of sexual contact? I would hope that case law provides for such restrictions, but it would seem to me that as long as the Maryland legislature reviews this decision and statutorily corrects the Battle decision, they should also address this gaping hole in their state law as well!
And, by the way, citizens of EVERY state should be verifying that their state legislature addresses "post-penetration rape," not just residents of the state of Maryland. According to the Babe decision, only 7 states have affirmatively stated that post-penetration rape is a crime. Excluding Maryland and North Carolina, that means that 41 states have no current case or statutory law addressing the issue.
Maryland statute
Unfortunately, it's not redundant, because the minimum requirements to trigger §3-308 require only a lack of consent, and the requirements to trigger §3-303 or §3-304 technically require substantially more.
Yes, this is another problem. It's still not legal, mind you, but it would fall under the category of assault (§3-203), which perhaps even more strangely has a higher maximum penalty than the fourth-degree sexual offense for sexual contact.
Go figure.
(Also, apologies for how long it took for your comment to appear — a major problem with blogging on topics related to sexuality is that they give the antispam system a very itchy trigger finger.)
Sexual consent in Maryland
Thanks for submitting this to the Carnival of Feminists. It's an important example. The blog is included in the 27th Carnival that is now up on our blog "Body Impolitic".
Best,
Laurie Toby Edison
women and rape
...are we therefore saying that women connot be convicted of rape? well, well, well... would you look at who has ut easy, i am a woman and I think that it is unfair to look at this issue in such a way. Call me what you like but I think that it is just plain oout UNFAIR! After all take a look around th e world is changing and so are women. there are women who assult and molest male children and adults alike
Women can be convicted
No, the basic requirement is that the guilty party "engage in vaginal intercourse", plus a host of other requirements. See the "Maryland Criminal Law" section. A woman could meet that just as well as a man.
As an aside, however, the world hasn't changed that much. While there are male victims of rape, only about 3% of men will ever experience rape or attempted rape during their lifetimes, and the majority of those will be attacks by other men. 18% of women will experience rape or attempted rape during their lives. See Findings from the National Violence Against Women Survey, National Institute of Justice and Centers for Disease Control and Prevention, November 1998.
women and rape
i think that it should be implemented that women should have the right to stop sexual intercourse no matter how far along the process has already gone.
What is rape?
I have been reading many articles on-line about this case. While I agree that the Maryland law needs revision, I am very troubled by the idea that what this boy did would be considered 'rape'. I'm speaking specifically of it taking him five seconds or less to comply with her withdrawal of consent. The boy was sixteen at the time. I have not read whether or not he was impaired by alcohol or drugs. Were his youth and inexperience even considered?!
As a fifty-year-old woman, I can think back to several "sweaty groping sessions" that I went through during my late high school and college years where the gentleman in question had a lot to put up with from me. I wanted to but I didn't want to. Yes. No. Maybe. I was inexperienced and he was inexperienced. If I said, "No, stop, don't do that" and he didn't INSTANTLY obey, I would no more consider that 'rape' than if he didn't INSTANTLY obey me when I wanted him to turn down the radio or stop tickling me. Kids wrestling around in the backs of cars--especially CONSENTING kids--do not instantly obey one another. That's not how the games of youthful exuberance are played. When does tickling your girlfriend for five seconds after she said 'stop, stop' become 'assault'? When does playfully tackling a buddy on the playground become 'battery'? I am very troubled by the idea that five seconds or less of hopeful persistence--followed by disappointed compliance--would land a sixteen year old boy in jail for FIVE YEARS and completely ruin his life.
We use the term "fog of war". I think that the term "fog of sex" also applies. Five seconds or less is a fairly responsive time for a steamed up 16-year-old youth to reign himself back in after a girl says yes and then no.
The second boy is a no-brainer: she said no, he forced her. That's rape, end of discussion. But the boy who had permission, had consent and then allegedly took a few seconds to stop? I can't believe that he was even prosecuted. Frankly, I'm appalled.
The decision to prosecute him in this circumstance shows a complete lack of common sense and dilutes the meaning of 'rape' in a manner that I fear will come back to haunt us.
Give me a break
How silly. Stops after 5 seconds and gets 5 years in the slammer? WTF is this world coming to? The pendulum has swung too far again.
5 seconds is not rape
I agree with you, but to answer your question about whether the boy was impaired, he was. The opinion states that the boys had smoked pot. Another thing to point out in this case is that yes the boy was 16, but the girl was 18. In addition to being older than the boys, the girl made a choice to go with these boys. There was another girl with these three who decided not to continue hanging out with them when they went for a ride.
In regards to some comments that this case provides that women can not withdraw consent after penetration. That is incorrect. Of course a woman can withdraw consent and a man should comply. The question is what is the crime if he doesn't? I personally think it is wrong to place this type of activity in the same criminal category as a situation wherein there was never consent. Obviously when there is never consent, the perpetrator has intent to rape, this is not always so in these "post-penetration" cases. The 16 year old boy in this case clearly made a decision to not rape. I feel for him and his family. I think that women need to take some responsibility for their actions as well. This girl was an adult, she knew what was going on. She even gave the boy her phone number and hugged them goodbye when she dropped them off. As for the examples someone else gave about a women who consented then found out that the partner had a disease, shouldn't that be discussed prior to consenting to sex.
As a woman, I agree with the views in the Battle case. If I consent to sex then want him to stop and he doesn't, that is a crime, but it is not the same crime as if I had never consented. The harm is not the same.
read the opinion before defending this man
If you read the opinion, particularly pgs. 5 and 6, you'll see that the whole situation involved force and coercion, and there was not really consent in the first place, because 'forced consent' is not consent.
From the opinion:
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. After she told them to stop, the
pair moved her around so that her body was up in appellant’s lap as
he held her arms and Mike tried to insert his penis in her, but
briefly inserted it into her rectum by mistake. After Mike again
tried to insert his penis in the complainant’s vagina, appellant
inserted his fingers in her vagina. After appellant exited the
car, Mike inserted his fingers, then his penis into her vagina.
Mike then got out of the car and appellant got in. Appellant
told Jewel that it was his turn and, according to the complainant,
the following transpired:
Q. [ASSISTANT STATE’S ATTORNEY]: And what else did he
say?
A. He, after that we sat there for a couple seconds and
he was like so are you going to let me hit it and I
didn’t really say anything and he was like I don’t want
to rape you.
* * *
Q. So when Maouloud said I don’t want to rape you, did
you respond?
A. Yes. I said that as long as he stops when I tell him
to, then -
Q. Now, that he could?
A. Yes.
* * *
Q. Did you feel like you had a choice?
A. Not really. I don’t know. Something just clicked
off and I just did whatever they said.
* * *
Q. Now when you told [appellant] if I say stop,
something like that, you have to stop. What did he do
after you spoke those words?
A. Well he got on top of me and he tried to put it in
and it hurt. So I said stop and that’s when he kept
pushing it in and I was pushing his knees to get off me.