COLUMN: When rape isn’t rape: How a Maryland court has affected women’s rights

By Lally Gartel

In an almost bizarre appellate decision in Maryland last week, a three-judge panel decided that a woman cannot withdraw consent to have sex after initially consenting to do so. The original decision of a jury to convict the defendant, Maouloud Baby, of rape was overturned by the Maryland Special Court of Appeals on the grounds that the judge in the original case misinterpreted both precedent and common law when he implied that a woman could withdraw consent to sexual activity even after giving consent initially.

Why should college students in Illinois care about this Maryland decision? The same reason pro-choice activists cared about the abortion ban in South Dakota, which, thanks to the recent midterm referendum, got shot down by popular demand.

Even with a federalist legal and judicial system, what happens to legal precedent in other states has ethical and political implications for the rest of the country, too. In all likelihood, other states have legal precedent that could be as shocking as this precedent seems to be. The particulars of the case in question, Baby v. Maryland, are important to note. The court’s opinion, actually based on precedent and the court’s interpretation of common law, asserts unequivocally that even though this decision is based on “archaic” principles, and even though the overwhelming precedent in other states says otherwise, Maryland is clear.

Maryland law, though, is only kind of clear. As several feminist blogs (Happy Feminist and Feministing in particular) have noted, the 51-page opinion itself contains the notion that the ideas used to make this decision are predicated on archaic conceptions of women and sexuality.

Other media sources have barely covered the case, with the Washington Post releasing one short article as of the time of the publication of this column. In any case, it is important to note that feminist activists are the only ones addressing this case which should, in fact, be important to every citizen regardless of gender.

The precedent-setting case used in Baby v. Maryland is a case called Battle v. State. In this decision, the court first held that a woman cannot withdraw consent after initial consent. The “precedent” actually used from Battle v. State only contains information on consent dicta, or in other words, as part of the opinion irrelevant to the ruling the judge actually made. It is debatable whether dicta statements should be used as precedent at all, but the judges in Baby claim that Battle is the only place in Maryland law that withdrawal of consent is addressed. The opinion in Baby, realizing the faultiness of its only precedent, states on page 32: “The concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law, views the initial ‘de-flowering’ 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, I argue, is the wrong way to view women’s rights. The opinion states on page 37 that though withdrawal of consent does not constitute rape, it is “common law assault,” and any person continuing sexual intercourse can be charged as such.

But even this is faulty; rape should be defined as the forcing of a sexual act without the consent of one party, at any moment. Women’s status as property is a definitively bad reason to exclude mid-act withdrawal of consent from the umbrella of sexual assault.

Judges, traditionally speaking, have two duties: to use existing law to make precedent, and as many judges of the civil rights and other socially revolutionary era did, sometimes a judge must change the law if it does not and cannot suit the needs of citizens. In Baby v. Maryland, the court of appeals did not keep our society’s best interest in mind when they conceded that women can be viewed as chattel, as mobile property and not as human beings.