MD- Top Md. court rules on sexual consent case

Rape charge can be brought if consent is withdrawn during sex, court rules

4-16-2008 Maryland:

The state's highest court ruled Wednesday 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.

"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."

The Maryland Court of Appeals' opinion in a rape case from Montgomery County overturns what defense attorneys and a lower appeals court said was existing common law and the high court's own 1980 opinion.

All seven judges agreed that a woman has the right to revoke consent, but reached that conclusion in different ways. Wednesday's ruling returns the 2004 rape case of Maouloud Baby to Montgomery County for a new trial.

Baby's case drew the attention of the state's highest court -- and of national and state women's groups -- when the Maryland Court of Special Appeals overturned his convictions for first-degree rape and other sex offenses in October 2006.

The case stems from a December 2003 incident in which he and a friend, both high school students, had sex with a community college student in an isolated school parking lot.

Baby, then 16, and Michael Wilson, 15, groped the woman and made sexual advances to her, according to police. First, Wilson had sex with the woman while Baby was outside the car. Then, police said, Baby told her it was his turn.

"[So] are you going to let me hit it?" he said, according to police. "I don't want to rape you."

The victim testified in Montgomery County court 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.

Wilson pleaded guilty to sec ond-degree rape and was sentenced to 18 months in prison. Baby denied any wrongdoing but was convicted of first-degree rape and other crimes and sentenced to 15 years in prison, with all but five suspended.

Mel Feit, director of the National Center for Men, based in Long Island, N.Y., said the facts of Baby's case have been lost in the larger argument about a woman's right to say no.

"The courts got it wrong then, and they are getting it wrong now," said Feit, who has followed the Maryland case. "There is no way that anyone is ever going to convince me that a five-second delay is first-degree rape."

He said that he, too, believes that a woman should be able to withdraw consent during sex. But he said the evidence showed that Baby did comply with the victim's demand to stop and that the jury in the case "threw common sense out the window" when they convicted him.

"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."

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."

In overturning Baby's convictions, the Court of Special Appeals wrote that the high court's 1980 opinion remained the last word on the subject of withdrawal of consent because neither the top court nor the legislature had since addressed it.

That appeals court, the state's second-highest, sided with defense attorneys who argued that the 1980 opinion held that rape does not occur if consent is withdrawn after penetration.

In arguments in October before the Court of Appeals, the assistant public defender, Michael R. Malloy, said the 1980 opinion was of critical importance and that the Montgomery County judge's failure to mention it during jury instructions in Baby's case was misleading and illegal.

Instead, when jurors asked Judge Louise G. Scrivener whether sex that begins consensually but continues after the woman tells the man to stop constitutes rape, she replied that it was "a question that you as a jury must decide."

At the October hearing, Assistant Attorney General Sarah Page 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.

The high court was itself conflicted about the 1980 ruling.

Four of the seven judges determined that the case had not been a binding precedent, meaning that Maryland law all along has been that rape includes instances where permission is given but later taken away.

"We conclude that post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape," Judge Lynne A. Battaglia wrote in the majority opinion.

Judge Irma S. Raker and two others found that the 1980 ruling had been binding -- but that it should be overturned.

That divergence, plus a lengthy recitation of the history of common law and a discussion of other appellate issues, added up to 76 pages.

Meg Garvin, director of programs for the Oregon-based National Crime Victim Institute, which filed a brief in the matter, said that while she was pleased with the court's opinion, she worried that its message might get lost in the tide of words.

"It would have been stronger and more easily digestible for the public if it had been shorter," she said. "A better answer would have been that a woman should be able to say no at any point in time and that we reject any common-law history to the contrary." ..more.. by Julie Bykowicz | Sun reporter