Sherry Colb: A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History
[Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site. ]
Late last month, in Maouloud Baby v. State of Maryland, the Court of Special Appeals of Maryland held that once a man has begun a consensual act of sexual intercourse with a woman, he may continue until he climaxes - even if she asks him to stop - without violating the law of rape.
In the State of Maryland, in other words, the law of rape presently does not authorize a woman to demand that her partner withdraw after penetration has already occurred.
This ruling and the precedent on which it relies rest on an explicitly anti-woman vision of what makes rape a harm to its victims....
Looking to History to Illuminate Modern Rape Laws
It is clear that historically, what made rape a crime had little to do with a woman's entitlement to bodily integrity and much to do with women's status as essentially the sexual property of men. As the Baby opinions suggests, "the cultural mores undergirding the notion that the crime of rape was complete upon penetration may be traced to Biblical and Middle, Assyrian Laws."
Such ancient laws viewed women as the chattel of "their" men - their fathers or husbands. To rape a woman was, then, to reduce the value of an asset held by her owner, a value that turned on whether the rapist had or had not achieved vaginal penetration.
For this reason, the Baby court emphasized that "[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." (Emphases added).
It is doubtless very interesting to learn the history of the law of rape, in part because it helps educate us about how slave-like women's status relative to men used to be. There is, however, something distasteful about the citation of Biblical law as support for the proposition that in Twenty-First Century Maryland, the rape statute does not give a woman the right to change her mind after penetration.
The actual written law of Maryland, incidentally, does not specify any distinction between the giving of consent pre- and post-penetration. It simply states: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person."...
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Late last month, in Maouloud Baby v. State of Maryland, the Court of Special Appeals of Maryland held that once a man has begun a consensual act of sexual intercourse with a woman, he may continue until he climaxes - even if she asks him to stop - without violating the law of rape.
In the State of Maryland, in other words, the law of rape presently does not authorize a woman to demand that her partner withdraw after penetration has already occurred.
This ruling and the precedent on which it relies rest on an explicitly anti-woman vision of what makes rape a harm to its victims....
Looking to History to Illuminate Modern Rape Laws
It is clear that historically, what made rape a crime had little to do with a woman's entitlement to bodily integrity and much to do with women's status as essentially the sexual property of men. As the Baby opinions suggests, "the cultural mores undergirding the notion that the crime of rape was complete upon penetration may be traced to Biblical and Middle, Assyrian Laws."
Such ancient laws viewed women as the chattel of "their" men - their fathers or husbands. To rape a woman was, then, to reduce the value of an asset held by her owner, a value that turned on whether the rapist had or had not achieved vaginal penetration.
For this reason, the Baby court emphasized that "[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." (Emphases added).
It is doubtless very interesting to learn the history of the law of rape, in part because it helps educate us about how slave-like women's status relative to men used to be. There is, however, something distasteful about the citation of Biblical law as support for the proposition that in Twenty-First Century Maryland, the rape statute does not give a woman the right to change her mind after penetration.
The actual written law of Maryland, incidentally, does not specify any distinction between the giving of consent pre- and post-penetration. It simply states: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person."...