Debating the rules of sexual consent

The Baltimore Sun

It could be anything from pain to fear of HIV to a change of heart: A woman's "yes" turns to "no" during sex. But what if her partner persists?

Maryland's two largest women's advocacy groups have urged the state's highest court to say that consensual sex can become rape if a woman says no at any time - a conclusion reached by courts of seven other states.

The organizations are supporting a Maryland attorney general's office request last month that the Court of Appeals overturn a lower court's recent decision. If the Court of Appeals agrees to take up the case - and court-watchers suspect it will - judges could hear arguments this year.

"For sure, this is not the last word on this," said Andrew D. Levy, a University of Maryland law professor, noting that "to say once there has been penetration, all bets are off ... is an extremely dicey proposition."

To have the law say anything else, victim advocates say, denies people the right to control intimate access to their bodies in favor of another person's unwanted and perhaps violent sexual demands. The advocates say law students from Wisconsin offered them free research help; feminist blogs have burst with outrage at the current interpretation of the law.

In their legal filings, the Maryland Coalition Against Sexual Assault and the Women's Law Center of Maryland say it's "astonishing" to suggest otherwise and justify it with archaic ideas that don't mesh with current knowledge, understanding and circumstances.

"Most women can think of a number of very legitimate reasons why a woman would want someone to stop," said Jennifer Pollitt Hill, executive director of the coalition, listing pain, absence of a promised condom, violence and a partner's confession that he is HIV-positive among them.

Maryland is not the only state to face this issue in recent years. Legal experts say the rise of feminism more than 40 years ago has led to rewriting laws - notably about rape and domestic violence, crimes that can have male victims as well as female, they point out.

Of the few states that have considered the issue, the top courts in Alaska, California, Connecticut, Kansas, Maine, Minnesota and South Dakota have ruled that a woman may turn her "yes" to "no" at any time.

In 2003, Illinois become the first state to adopt a no-at-any-time law.

North Carolina courts rejected that line of thought in a 1979 decision. The recent Maryland ruling took its cue from a 1980 Maryland opinion that commented that "if she consents prior to penetration and withdraws the consent following penetration, there is no rape."

Men's advocate Anthony Nazzaro, producer of MensNet, a public access cable television show in New York, said he's heard from men who insist that once a woman has consented "it's her obligation to finish what she started." Some perceive that ending consent partway through sex is "abusive" to men, he said.

A partner who does not stop when asked should not be charged with rape, Nazzaro said, arguing that brutal penetration is different from failure to end previously agreed-upon activity.

"It should be a lesser charge of sexual abuse or assault and battery," he said.

Those leery of no-at-any-time rules - which they say heighten worries about false rape accusations - say that, although they believe a man should respect his partner's wishes to stop immediately, the discussion can't end there.

For instance, what's "immediately?"

The sole California Supreme Court justice who dissented in its precedent-setting 2003 case raised just that issue. She noted that the youth convicted in that case asked the girl for additional time at least twice over several minutes after the girl repeatedly told him she wanted to leave.

Justice Janice Rogers Brown criticized the majority for not saying, "How soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force?"

Biological argument

The California defendant's lawyer had made a biological argument, contending, "It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge."

Mel Feit, executive director of the National Center for Men in Bethpage, N.Y., made a similar argument about the Maryland case: "I think five minutes is too long, and five seconds is not rape. I think the question is, 'Does it look as if he disregarded what she said?' "

But women's activists say talk of men needing extended time to regain control of themselves is overblown if not downright offensive to men.

"It is contrary to the common experiences many of us have had. If you are husband and wife and your toddler walks into the room, you stop pretty quickly. Go back even further - teenagers, if their parents walk in," said Lisae C. Jordan, legislative counsel for the Maryland Coalition Against Sexual Assault.

A jury can take up the question of what's a reasonable amount of time for the man to halt intercourse, she said.

Jordan added that the situation has parallels in other crimes - trespass, for example.

"If someone believes they are in the home consensually and then are asked to leave, then they have time to get out," she said.

In the Maryland case, the victim testified that it took the accused youth "about five seconds or so" to stop.

The case dates to the trial of a boy who was 16 when accused of raping an 18-year-old community college student in her car on the night of Dec. 13, 2003. Maouloud Baby was convicted a year later in Montgomery County of first-degree rape and other crimes - some from helping his 15-year-old friend assault the young woman first - and sentenced to 15 years in prison, with all but five of those years suspended.

The victim, who had met Baby that night, testified at the trial that she told him that "as long as he stops when I tell him to" she would have sex with him.

As he began, she told him to stop because he was hurting her, but he kept going for five or 10 seconds, she said.

Baby, who was tried as an adult, denied any wrongdoing.

During deliberations, the jury asked Judge Louise G. Scrivener whether sex that begins consensually but continues after the woman tells the man to stop constitutes rape. The judge replied that was "a question that you as a jury must decide."

On appeal, Baby's lawyers argued that the judge should have replied that it was not rape.

The Court of Special Appeals overturned Baby's convictions, first in an opinion in October, and in a clarified ruling in February.

The judges wrote that they felt bound by the 1980 Court of Appeals opinion. That, they said, remains the last word on the subject because neither the top court nor the legislature addressed the subject since then, which legal experts said is close to an open invitation to do so.

English common law

Maryland has not abandoned the English common-law notion that rape is defined by penetration - the "deflowered" woman could not be "reflowered," the intermediate appeals court said in February. The ruling went on to say that "after the 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."

Asking the top court to weigh in, the Maryland attorney general's office said the Court of Special Appeals' interpretation of the law was wrong, bad public policy and contrary to current laws.

The Office of the Public Defender maintained the Court of Special Appeals' interpretation was accurate.

Legislators and activists disgruntled with the current legal interpretation are watching the case closely.

"It is a scenario about which we are very concerned," said Del. Shirley Nathan-Pulliam, the Baltimore County Democrat who heads the General Assembly's women's caucus. "Once they take action, then we will decide if we want legislation."

andrea.siegel@baltsun.com

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