Maryland Court Rules That No Actually Means No

by Cara on April 17, 2008

in assholes, courts, legislation, media, misogyny, patriarchy, rape and sexual assault, violence against women and girls

Maryland’s highest court has overturned a horrid ruling and joined seven other states in recognition of the fact that a woman (and hopefully any person?) can revoke her consent to sexual activity — and that, shockingly enough, when a person continues sex after being told to stop, that sex becomes rape.

I’m thrilled that the court has made this ruling. Though I really shouldn’t have to applaud them for what basically amounts to common sense, I do. It’s also extremely reassuring that the decision was unanimous.

But it makes me want to bang my head against the wall that we are living in two thousand fucking eight, and until yesterday forty-three states in the USA did not legally regard as rape certain kinds of sex that continue once one of the parties has clearly said “no” or “stop.” Especially since that number of states still today holds at forty-two. And though wholly unsurprised by it, I want to rip my hair out at the misleading nature of a lot of the reporting/blogging. (Please do not google this case; doing so made me want to cry.)

Basically, many are attempting to construe this as a ruling over the fact that the rapist in question delayed stopping for “five to ten seconds” after the victim told him to — as though his actions were acceptable by some standard, and as though there’s no larger question about the revocation of consent at hand. This particular asshole would have you believe that we’re going to start sending men to jail for poor reflexes:

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.”

I have to laugh at the suggestion that a man who rapes is actually going to jail, like it’s some kind of guarantee. And I doubt that Feit could exaggerate more. (Here, let’s try it: “But what if he slips? Or gets stuck? It could happen — what if there’s a chemical reaction and the lube turns into a paste like material, and his failed attempts to pull out just seem like thrusting?”)

First of all, I’d say that five to ten seconds is more than enough time for an able-bodied person to stop. Secondly, there’s a big difference between taking five seconds to pull out and doing what this guy allegedly did, and only one source I’ve found managed to report: violently continuing to thrust.

“I said, ‘Stop,’ and that’s when he kept pushing it in, and I was pushing his knees to get off me,” she testified.

Oh yeah, that’s what I’d call a mere failure to stop on a dime.

Thirdly, that we’re having this conversation with regards to this particular case is absurd. I’m glad that the topic came up (though very sad that the victim had to go through this) but revoked consent never should have been the issue. Despite the fact that every media outlet is reporting what happened as “sex,” it was rape plain and simple. There wasn’t any consent to revoke. As the Washington Post reports it:

The case centered on a 2003 encounter in which Baby, then 16, was accused of fondling an 18-year-old and holding her arms while a friend of his sexually assaulted her in a parked car. Later, the woman testified, Baby told her, “It’s my turn now.”

“He was, like, ‘So are you going to let me hit it?’ ” the woman said. “And I didn’t really say anything, and he was, like, ‘I don’t want to rape you.’ “

She said she told Baby they could have sex as long as he agreed to stop if she told him to. Soon, she said, she told him to stop. He continued for “five or so seconds” after she made the request, she testified.

Baby’s friend, Wilson, pleaded guilty to second-degree rape — so even being exceedingly generous to him, I think we can agree that the first part did indeed happen, at least in some form.

But that we’re arguing over whether or not what Baby did is rape, based this description here, absolutely blows my mind. If she did indeed consent to sex, revoked it, and then he tried to force her into continuing, that would have been rape. But when a man says to a woman, particularly one who has just been raped, that he wants to “have sex” with her and then adds when she doesn’t consent “I don’t want to rape you,” her saying “okay” is not consent. Negotiating with your rapist is not consent, and that’s precisely what she tried to do — get out of the situation as quickly and with as little damage as possible. Consent under threats, duress, coercion and manipulation is not consent. Period.

And I wish that was the ruling that had been made — because it’s what the case should have been about, and because this issue is important, rarely recognized outside of feminist circles and probably a lot more common. If we’re going to have the media trying to scare the shit out of men with “changing” definitions of consent, I’d really like to see it be a part of that admittedly crude reeducation process. Of course, seeing as how there’s no shortage of people, including self-identified leftists, willing to argue that this ruling somehow violates men’s rights, it was obviously necessary. But it’s also really scary that it’s the tactic they had to use to get a conviction.

On the bright side, there is another positive aspect of the ruling that is being under-reported:

In the decision, judges said that the trial judge was right to allow testimony from an expert in what’s called “rape-trauma syndrome.” The expert explained to jurors why the victim’s behavior might have seemed inconsistent with someone who’d been raped. Baby argued that testimony wrongly swayed the jury and should not have been allowed.

This is great news. I can’t count the number of times I’ve seen defense attorneys argue that the victim didn’t act enough like a victim and therefore wasn’t one — nor can I count the number of times juries have bought it. This is a precedent I would love to see picked up, because if a jury is going to make a ruling on rape, they damn well need to be educated about it. Last time I checked, proving a defense attorney wrong isn’t wrongly swaying a jury.

The upsetting part of the ruling is that Baby’s conviction was overturned. He wasn’t acquitted, but the victim will have to go through another trial if the state decides to pursue the case further. About four and a half years after being raped, I can only imagine that all this woman wants is to move on with her life. Who knows how long it will be until the courts finally let her.


cross-posted at Feministe

{ 1 comment }

1 Megan April 18, 2008 at 5:13 am

That is fantastic news. It is such a shame that we have to give a cookie to people for having the sense to at least somewhat acknowledge that this is rape. But still it is better than most of the news I’ve been reading about lately. Love the blog, by the way.

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