November 01, 2006

More evil


[T]o be sure, it was the act of penetration that was the essence of the crime of rape; after this 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. It was this view that the moment of penetration was the point in time, after which a woman could never be “re-flowered,” that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape. Maryland adheres to this tenet, having adopted the common law, which remains the law of the Land until and unless changed by the State’s highest court or by statute.

So, according to a Maryland appellate court, rape is bad because it's a form of property damage -- and once your property isn't a virgin anymore, it's basically too worthless to be damageable. When was this appalling opinion handed down?
(a) 1794
(b) 1877
(c) 1942
(c) The day before yesterday
Answer below the fold!

Of course the answer is the day before yesterday (pg 32).

I think I'm saving this one; it's a fantastic example of how some really nasty notions about sexuality are incredibly pervasive, and it would be good to have students read this along with some radfem material from a couple decades ago.

Via Amanda, who has links to discussions at feministing, feministe, and Broadsheet.

3 comments:

Drew said...

Respectfully, you have completely misunderstood this decision. The passage you quoted, you will note, is written in the past tense. The court in this case was called upon to make a ruling based on the meaning of the Maryland rape law, which law was derived from the English common law, which dates back centuries. Under this law, yes, withdrawn consent does not make rape. The court is not endorsing this view. The court is explicating the meaning of the law.

The Maryland legislature needs to change the law immediately to remove this loophole, but the decision in this case was (as far as I can see) the correct one, based on the law as it is today.

Noumena said...

From this analysis:
The court tries to portray its decision as an act of restraint deferring to the high court of Maryland and the legislature. However, if you read the opinion, you will notice the great lengths the court goes to distinguish the case before them from every other case cited by the parties. The court also spends a lot of time dissecting prior opinions to determine what is "dicta" and what is the actual holding of those decisions.

More from the same person here.

Drew said...

I don't see anything in those links that challenges my view of the case. The Maryland rape law is what it is. Courts generally aren't supposed to simply rewrite laws.

This case was decided on the basis of a bad jury instruction. The jury asked the judge whether withdrawing consent in the middle of the act makes it rape. The answer is an unequivocal "no", but the judge didn't answer.

Yes, it is an odd opinion in several ways. But there is nothing in the links you provided that suggests that the court erred in any way.