Maryland's highest court heard arguments yesterday in a case closely watched by national and state women's groups regarding whether consensual sex can become rape if a woman says no in the middle of the act.
Representing the state, Assistant Attorney General Sarah Page Pritzlaff urged the Court of Appeals to reverse a lower court's decision issued last year. She argued that when force is applied, the act qualifies as rape even if there was initial consent.
"It's rape when the woman says, 'I've changed my mind,' and the man continues to use force or threat of force," she told the judges.
"You clearly have the element of force, you have the resistance by the victim," she said, noting that the victim was bleeding. "The victim was quite clear that it was hurting, that she wanted him to stop."
But Assistant Public Defender Michael R. Malloy argued that, under existing common law and according to a 1980 opinion from the high court, if a woman says yes to intercourse initially and then says no, it's not rape.
The judges posed tough hypothetical questions to the attorneys, and some expressed doubt that there was ever consent to have intercourse in this particular case.
"I have a hard time finding where there was ever any consent," said Judge Dale R. Cathell.
At issue is a decision by Maryland's Court of Special Appeals that overturned the 2004 first-degree rape conviction of Maouloud Baby of Montgomery County. A friend of Baby's pleaded guilty to rape charges in the case.
The case has landed on the radar screens of women's groups across the country that hope Maryland will join seven other states whose courts have concluded that a woman can revoke her consent after intercourse has started.
Only Illinois has a state statute addressing the issue.
Representatives from the Maryland Coalition Against Sexual Assault and the Women's Law Center of Maryland, who filed legal briefs in support of the state's position, attended the hearing. Two national groups - the National Crime Victim Law Institute and the National Alliance to End Sexual Violence - signed onto their legal filing.
Meg Garvin, director of programs for the Oregon-based National Crime Victim Institute, called the issue at stake "critical."
"While there are only two states that have this withdrawal of consent - Maryland and North Carolina - it's still a huge problem for rape victims and buys into too many of the myths of rape," said Meg Garvin, director of programs for the institute.
"Our hope is that this court will disavow what happened" in the 1980 case "and come out saying very strongly that a woman can say 'no' at any time during a sexual activity," she said.
The case stems from a Dec. 13, 2003, incident in which the victim, an 18-year-old community college student, drove Baby, then 16, and his friend, Michael Wilson, then 15, both high school students, to an isolated elementary school parking lot, according to court documents.
Wilson and Baby groped the victim and made sexual advances on her, according to the state's account of the incident in court filings. At one point, Wilson attempted to force the victim to engage in sex, while Baby held her down. Then Baby left the car and Wilson had intercourse with the woman. Wilson pleaded guilty to second-degree rape and was sentenced to 18 months in prison.
Baby, according to the court record, then said it was his turn and asked the victim, "[So] are you going to let me hit it?" adding,"I don't want to rape you."
The victim testified that she agreed to sex "as long as he stops when I tell him to." 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. He was convicted a year later of first-degree rape and other crimes - some from helping his friend assault the woman first - and sentenced to 15 years in prison, with all but five suspended.
At yesterday's hearing, Malloy argued that the instructions to the jury were misleading and a violation of law because the judge failed to mention a 1980 Court of Appeals opinion that said that rape doesn't occur if consent is withdrawn after penetration.
During its deliberations, the jury had 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."
"A defendant cannot get a fair trial if the jury doesn't know what the law is," said Malloy before the high court yesterday.
Malloy also argued that the lower court should not have accepted the testimony of the state's witness, a nurse presented as an expert in "rape trauma syndrome."
In its reversal, the Court of Special Appeals wrote that the 1980 opinion remained the last word on the subject because neither the top court nor the legislature has since addressed the subject.
But yesterday, Pritzlaff argued that the judges should overrule the 1980 opinion because it "was wrong in spouting some of that old common law." The "archaic stereotypes of women and rape upon which common law rape is apparently premised are obsolete," the state wrote in its appeal.
Yesterday, the judges asked several hypothetical questions.
Judge Alan M. Wilner asked the defense, "If she does effectively communicate, 'Stop now,' and he continues with force against her will, there is penetration. ... Why isn't that rape?
"At some point the lack of consent was there, and so was every other element of offense," he said.
Judge Lynne A. Battaglia asked Malloy, if a woman consents and revokes her consent and "in order to keep going for whatever duration the man hits her or subdues her in ways that are forceful or violent, it's not rape?"
Malloy acknowledged that there are extreme examples, but in this instance, he said, the time frame is about five seconds.
Attorneys for both sides said they don't expect a ruling for several months.
Lisae C. Jordan, legislative counsel to the Maryland Coalition Against Sexual Assault, said the judges were very thoughtful in their questions. "Certainly the hypotheticals posed showed that they really understand what the implications are," said Jordan.
The bottom line, Jordan said, "is women should have the same rights whether they have a penis inside them or not."
Dick Bathrick, director of programs for the Georgia-based Men Stopping Violence, said he thinks women should be able to revoke consent at any point.
But Bathrick said it's difficult to determine how long after a woman says no is too long, so the details of each situation are important.
"I think you have to look at the context," he said. "I think part of why this is so loaded is we're not willing to look at these contexts to see if there's actual choice or perceived choice."
Danielle Cover, legal project manager for the Women's Law Center of Maryland, said the issue boils "down to a question of how much emphasis we put on a person's sexual autonomy and where we draw those lines."
Jordan said that if the judges don't reverse the decision, "we'll have to bring it to the legislature."