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Score one for the rapists

Jill

Well this is good news for sexual assaulters everywhere: A Maryland appellate court has ruled that consent cannot be withdrawn once sex has started.

This is an incredibly frightening ruling. It essentially means that once penetration occurs, you have no right to end it until your partner does. Once you’re having sex, you lose basic rights to your own body.

I can already imagine the arguments that supporters of this ruling will put forth — that it’s not fair for a woman or man to withdraw sexual consent while in the act, because it creates difficulty in measuring the time between when consent was withdrawn and when the sex actually stopped. That is, would it be rape if one partner says “stop” in the middle of it, and the other partner keeps going for three more seconds? Ten seconds? A minute?

This argument, though, is silly. Courts apply “reasonable person” standards all the time — the question here, I would think, is how long would a reasonable person keep going if their partner asked them to stop?

Put yourself in the situation: You’re having sex. Your partner says, “Stop.” What do you do?

Most decent people stop right then and there. You don’t keep going for a full minute, or even 30 seconds. When you hear “stop” or “no” or “that hurts,” you stop what you’re doing. I can’t imagine continuing to do something after my partner asked me not to — I further imagine that hearing them say “stop” would be jarring enough to stop me in my tracks.

But we arn’t talking about sensitive feminist types, right? We’re talking about “average people,” and my views on sex and sexuality may or may not be average. So let’s pretend that “average person” Partner A doesn’t stop when “average person” Partner B asks him to. Partner A keeps going. Partner B asks him to stop again. He doesn’t. Then Partner B yells at him to stop. He doesn’t. Partner B tries to push him off. He holds Partner B down. Partner B screams for him to stop, cries, struggles to get away. Partner A doesn’t stop until he’s finished.

What does that sound like? Would a reasonable person, with no intent to harm another, act in the way that Partner A did? Should Partner A have legal protection? Is this a standard that we want enshrined in the law?

This ruling is shameful. Let’s hope it isn’t repeated.

Thanks to Jessica for sending this on.

105 thoughts on Score one for the rapists

  1. WOW that’s offensive. I mean, Jesus Christ, what would the result be if we applied this logic to other crimes?

    Oy. Just more proof that our culture values private property more than women’s rights to bodily autonomy.

    Anyway, the standard I’ve always liked is the one Ampersand uses when confronted with the, “but it’s so hard for men to stop in time,’ argument. It’s: What would you do if your mother walked into the room?

    Very few men would just keep on pumpin’ away obliviously. No, they’d leap up, cover themselves, yank their pants on, etc. Men need to learn to respond with the same speed to a withdrawl of consent.

    —Myca

  2. Put yourself in the situation: You’re having sex. Your partner says, “Stop.” What do you do?

    Stop. Like any decent and “reasonable” person. Really, the idea that anyone has a right to a sexual act (or continuing a sexual act), even at the cost of another’s right to their own body is horrifying and barbaric, and I can’t believe that such an idea would be upheld by a court of law.

    Terrifying. Absolutely terrifying. Add Maryland to the list of states I can’t visit anymore.

  3. This is down right horrifying.

    Did you chek out the survey?

    :SURVEY
    Do you agree with the courts ruling that no doesn’t mean no after sex has started?
    Yes, a woman can’t claim rape after she said yes and sex has started.
    No, a “no” means no — no matter when it is said.

    Even scarier – check out the results. only a 59% no at this point.

  4. When does sex start then? Penetration? Foreplay? Entering the bedroom? Making eyes from across the room? Going steady?
    Even if this does come with a concrete definition of ‘beginning of intercourse’ (presumably penetration) it’s just a hop skip and a jump away from ‘but her clothes were already off!’

  5. Great. So if a woman starts having sex with a guy, and she does some wacked out yoga move that hurts him, she won’t have to stop, since, you know, she can’t.

    /sarcasm

  6. :SURVEY
    Do you agree with the courts ruling that no doesn’t mean no after sex has started?
    Yes, a woman can’t claim rape after she said yes and sex has started.
    No, a “no” means no — no matter when it is said.

    This is a pretty good example of how the phrasing of surveys can really tilt the answers. “Yes, a woman can’t claim rape after she said yes and sex has started” sounds like a pretty reasonable position. It sounds like it’s saying that a woman shouldn’t be able to accuse you of rape for starting to have sex with her when she never said “no.” The actual question isn’t about “claiming rape” so much as it is about standards of consent. The question should have read something like, “Yes, a woman should not be able to withdraw consent after sex has already started” or “Yes, a woman should not be able to claim rape if she told her partner to stop while they were having sex and he refused.”

  7. This is horrifying. Please tell me this isn’t going to be the final word on this case. Please tell me this is not going to be allowed to stand as precedent.

  8. i think its time to email bomb the judge. remember the outcry when the asshole judge tried to make the rape victim (a minor) watch herself be raped and tortured on video? he got enough emails that his line of thinking was quickly corrected. i think there needs to be organized outrage on this one. we def don’t need any more rogue judges (or states SD) telling a women when she has been raped, or how much control SHE has over HER body.

    this has got to be stopped. this is insane, disgusting, this is ownership. so HIS orgasm is more important then HER pain? her comfort? her desire? her fear? and what the hell about HER ORGASM??? you don’t see women doing drive bys or shooting random men demanding that our sexual needs aren’t being met…wtf.

    we have got to change this.

    MARYLANDERS – can you give us some contact info…maybe we can write into the local newspapers…tv stations, call in radio talk shows…

    organized outrage, lets own this discussion and change its course.

  9. Living, as I do, in a state with bad rape laws, I had to take a look at the law being decided — the fault could potentially lie with Maryland’s legislature, not the courts. But, um, that’s actually not the case. Other than Maryland’s weird prohibitions on sodomy and oral sex, Maryland’s rape laws look a lot like Washington’s, which are decent.

    This isn’t just something that could happen in Maryland; this is something that could occur in your local courts, too.

    — ACS

  10. btw, please follow the link on the story and take the quiz – the more NO MEANS NO votes the better…kind of on the right hand side of the page…

  11. Actually, I lied. Maryland’s rape laws contain some fairly awful stuff. Like this:

    § 3-318. Same – Spousal defense.
    In general

    (a) Except as provided in subsections (b) and ( c) of this section, a person may not be prosecuted under § 3-303, § 3-304, § 3-307, or § 3-308 of this subtitle for a crime against a victim who was the person’s legal spouse at the time of the alleged rape or sexual offense.

    Separation or use of force

    (b) A person may be prosecuted under § 3-303(a), § 3-304(a)(1), or § 3-307(a)(1) of this subtitle for a crime against the person’s legal spouse if:

    (1) at the time of the alleged crime the person and the person’s legal spouse have lived apart, without cohabitation and without interruption:

    (i) under a written separation agreement executed by the person and the spouse; or

    (ii) for at least 3 months immediately before the alleged rape or sexual offense; or

    (2) the person in committing the crime uses force or threat of force and the act is without the consent of the spouse.

    — ACS

  12. Actually, I lied. Maryland’s rape laws contain some fairly awful stuff. Like this:

    § 3-318. Same – Spousal defense.
    In general

    (a) Except as provided in subsections (b) and ( c) of this section, a person may not be prosecuted under § 3-303, § 3-304, § 3-307, or § 3-308 of this subtitle for a crime against a victim who was the person’s legal spouse at the time of the alleged rape or sexual offense.

    Separation or use of force

    (b) A person may be prosecuted under § 3-303(a), § 3-304(a)(1), or § 3-307(a)(1) of this subtitle for a crime against the person’s legal spouse if:

    (1) at the time of the alleged crime the person and the person’s legal spouse have lived apart, without cohabitation and without interruption:

    (i) under a written separation agreement executed by the person and the spouse; or

    (ii) for at least 3 months immediately before the alleged rape or sexual offense; or

    (2) the person in committing the crime uses force or threat of force and the act is without the consent of the spouse.

    — ACS

  13. Is that still on the books, ACS? I thought that almost all states had gotten rid of the spousal rape exception.

    Scary stuff indeed.

  14. Wow, so if I said yes to some nice vanilla sex with somone, and durring the middle of the sex, this person tied me down and violently beat and fucked me while I screamed “Oh no stop!” it would not be rape?

    What kind of crack are these people smoking?

  15. The good news is that this isn’t the last word in the Maryland courts, the Court of Appeals can overturn this judgement. And does anyone have the names of the judges on this decision?

    Trying to think positively, maybe this decision will bring the inadequacy of the current rape laws to the forefront, and get the laws that ACS brought up changed in the next session. Maryland does have a relatively good percentage of female legislators (though we did lose the most powerful one to a failed Congressional run). Here’s hoping that this motivates people to the polls.

    But seriously, this comes as a shock to a Marylander. Definitely a “this could happen anywhere” type of reaction.

  16. Yes, it’s still on the books.

    It looks like this one is a partial spousal rape exception — which exists in almost every state, mostly as a way to allow Alzheimers patients and developmentally disabled individuals to consent to sex under limited circumstances. This one (like Idaho’s) goes much, much further than it should, effectively legalizing drug-facilitated marital rape, non-violent coercive rape, and what the sleep-fucker from a couple stories back did.

    I had no idea that anything this bad existed — even Idaho’s isn’t this awful.

    — ACS

  17. Okay, that spousal rape defense still sucks but not necessarily as much as I first thought.

    From the Annotated Code:
    PROSECUTION WHEN FORCE USED. –Former Art. 27, § 464D(c) (see now this section), allowed a prosecution for spousal rape when force was used, whether or not the spouses are separated or refrained from cohabitation. 79 Op. Att’y Gen. 119 (August 4, 1994).

    IN ORDER TO GAIN A CONVICTION OF ATTEMPTED SECOND DEGREE RAPE UNDER FORMER ART. 27, § 464D(C) (see now this section), the State would have to prove, beyond a reasonable doubt, an intent by the husband to engage in vaginal intercourse by actual force (not merely the threat of force) and against the will and without the consent of the wife, and conduct in furtherance of that intent. It is not likely that mere embracing, holding, pushing, touching, or kissing, discontinued upon direction or resistance by the spouse, would suffice, without more, to establish the requisite intent. Lane v. State, 348 Md. 272, 703 A.2d 180 (1997).

    From my quick understanding, a husband can be convicted of raping his wife, it is just a tougher standard. Which still sucks, but not as much as I first thought when I read ACS’s post.

  18. I just read the opinion (that link is a pdf), and the decision was based on the court’s interpretation of a 1980 case that contained this statement: “On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape.” The state argued that that statement was just dicta, but the court found that it was part of the holding. So, technically it was that 1980 decision that answered the question of whether consent can be withdrawn after penetration, not that that should make anyone feel any better.

    The holding is based on the common law definition of rape:

    The concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law, views the initial “deflowering” 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 initial violation of the victim also provided the basis for the criminal proceeding against the offender. But, to 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.

    Quaint, isn’t it?

  19. Wow, is that opinon insulting. Not exactly surprising when you consider that one of the judges on the case retired in 2000 and was brought back for this case.

    I highly recommend Happy Feminist’s take on this, complete with solid legal analysis.

  20. So if a woman agrees to be spanked during sex, can the guy just beat her to a pulp? Hey, agreement to S&M is agreement, right?

    These people’s (the court) brains are wired different or something; they really are weird.

  21. Wow, so if I said yes to some nice vanilla sex with somone, and durring the middle of the sex, this person tied me down and violently beat and fucked me while I screamed “Oh no stop!” it would not be rape?

    From the limited information I can gather, this is not too different from what happened in the Kobe Bryant case. You know, the one that resulted in the withdrawal of the criminal case after the victim was outed and got hundreds of death threats for daring to accuse a popular sports figure of rape. Because if a man is good on the basketball court, he can’t possibly be capable of rape.

    I believe that her allegation was that she consented to vaginal sex. He suggested anal sex and she declined. At a later moment, he disregarded her lack of consent and raped her anally.

  22. What a fucked up, backwards ruling. Let’s just hope this is appealed and Maryland SC will have sense enough to banish this ruling back to the Cretatious period, where it belongs.

    Assholes.

  23. Unlike you I’m not a lawyer, so this is pretty presumptious, but I think there’s a hole in your logic (and that of other posters):

    “Partner B tries to push him off. He holds Partner B down. Partner B screams for him to stop, cries, struggles to get away. Partner A doesn’t stop until he’s finished.

    What does that sound like? Would a reasonable person, with no intent to harm another, act in the way that Partner A did? Should Partner A have legal protection? Is this a standard that we want enshrined in the law?”

    This clearly is a crime. It just isn’t rape under their ruling. It would fall under assault, battery, unlawful wounding, and so on. Partner A may have consented to sex, but certainly not the other stuff.

    I think part of people’s difficulty with the ‘consent to sex can be withdrawn during sex rule’ is that it can make someone a criminal simply by having someone else vocalise a command, and without any active role on their part of the criminal. On an abstract level, if two people are having sex and they both withdraw consent, then they’ve both broken the law, even though neither have physically done anything.

    I think Jill’s perhaps arguing against a counter-position which doesn’t exist. Instead of ‘once you agree to sex you have no rights’, the ruling might imply something along the lines of the other person not being obligated to withdraw because you told them to, but also not being able to use force to prevent you from withdrawing from the situation yourself.

  25. think part of people’s difficulty with the ‘consent to sex can be withdrawn during sex rule’ is that it can make someone a criminal simply by having someone else vocalise a command, and without any active role on their part of the criminal.

    Yes, I agree that people’s difficulty is clearly with the idea that they have to stop fucking somebody just because she says so.

    But I think rape is pretty active. In the cases I’ve heard discussed, the assailants didn’t just freeze up and lie there pinning the woman down until they figured out what was going on, though that would be bad in itself. They continued thrusting, which in the absence of consent is rape, and with or without consent is indisputably and undeniably active.

    the ruling might imply something along the lines of the other person not being obligated to withdraw because you told them to,

    This is a distinction without a difference. If you are not obligated to “withdraw” your penis from a woman’s body just because she tells you to, you are allowed to rape her. That’s what rape is.

  26. If the ruling is incorrect (and I think it’s incorrect), it means that there needs to be a bright line drawn in terms of what constitutes criminal conduct. Where should that line be drawn? At the very instant that lack of consent is clearly vocalized?

    — ACS

  27. I think that the concern about the few seconds that a man’s penis would still be inside a woman after she has withdrawn consent is not a very real one. What woman is going to report being raped just because it took the guy three seconds to remove his penis after she told him to stop?

  28. This whole insistence on a ‘grace period’ in which to get in a last couple of quick thrusts after she says no is creepy as all hell. The only scenario in which it would make any sense not to get out and off immediately is one in which the guy, genuinely confused and worried, freezes and says “What’s wrong, are you okay?” before moving. But you stop moving or withdraw, and those are the only two choices. Sometimes “Stop” means “stop moving for a sec, that hurts” rather than “get off me.” But the one thing it NEVER means is “keep going.”

  29. …If you are not obligated to “withdraw” your penis from a woman’s body just because she tells you to, you are allowed to rape her. That’s what rape is.

    It honestly strikes me as strange that the law should impose an obligation upon one partner to disengage from sex because the other partner said so, without considering any similar obligations for the other partner.

    Suppose I get totally drunk and stoned out my mind. I collapse on my bed, and acquiess to let my partner stradle me and use me as a love doll. My role is completely passive. It does strike me as odd that if they withdrew consent, I’d have an obligation to disengage – under pretty severe penalties – when they could just as well (or more easily even) do it themselves.

    It’s like it conceives of sex as something which is solely done to someone, without considering them as a participant in it.

  30. RR: The woman of the MRA literature, of course? dontchaknow that all women are just a bunch of evil whores who delight in the means of denying good, wholesome men their freedom? Withdrawal of Consent laws mean that a whole new means of trapping and ruining men’s lives. I for one, can’t wait. I’ve been waiting for a good court precedent so that I can finally have my fiance sent to jail.

  31. It honestly strikes me as strange that the law should impose an obligation upon one partner to disengage from sex because the other partner said so, without considering any similar obligations for the other partner.

    So if a guy is top of me and I tell him to stop, how the fuck am I supposed to MAKE him stop? How, exactly, should I have a “similar” obligation to stop when he’s on top of me?

    How rude of me not to realize that I had a similar obligation to you know, make him stop somehow. How very strange that we expect guys to show a shred of respect for their partners.

  32. My role is completely passive. It does strike me as odd that if they withdrew consent, I’d have an obligation to disengage –

    Can you think of any reason why they would withdraw consent strictly verbally, rather than in the way that anyone on top actually does withdraw consent, which is by climbing off of the person underneath them? The whole freaking point of having to ask somebody to stop fucking you is that you’re either underneath them or they’re strong enough to hold you against them. This can’t be news.

    without considering any similar obligations for the other partner.

    I don’t know where you’re getting this from. The partner asked to stop is the partner with the obligation to stop. The partner with somebody on top of them is far more likely to be the one who has to ask to have it stop. Who said otherwise?

  33. I think part of people’s difficulty with the ‘consent to sex can be withdrawn during sex rule’ is that it can make someone a criminal simply by having someone else vocalise a command, and without any active role on their part of the criminal.

    No, because it’s not like if she says “stop” when he’s across the room that’s rape (unless he has telekinetic powers). Your logic could be applied by an out-and-out misogynist to any rape allegation: “if she merely says ‘no,’ it turns sex into rape!” Well, yeah. That’s the idea.

    Now then, I can’t honestly imagine someone who didn’t intend to commit rape in the first place not stopping when he hears “that hurts.”

  35. On an abstract level, if two people are having sex and they both withdraw consent, then they’ve both broken the law, even though neither have physically done anything.

    Uh…..can you, ya know, make sense? If they both withdraw consent, do they keep having sex, even though they both don’t want to? Do they vocalize their withdrawal of consent? I can’t imagine one scenario where your “abstract” idea would ever occur.

  36. Uh…..can you, ya know, make sense? If they both withdraw consent, do they keep having sex, even though they both don’t want to? Do they vocalize their withdrawal of consent? I can’t imagine one scenario where your “abstract” idea would ever occur.

    There was that one Star Trek episode.

    If a woman can stop what’s going on just by withdrawing, then she’d probably do so, right? This is a nonsensical argument.

  37. So, when does sex start? Also, when does sex stop… If a woman consents to sex, the guy can’t stop until she orgasms? vice versa? The consenter allows the consentee to orgasm? vice versa? Both must orgasm for sex to be considered complete?

    This leads to some really bizarre and strange additional rulings being needed in order to understand it, even for “reasonable” person.

    A “stop” meaning “stop” is so much easier to understand, among all the other stupidity surrounding this that others have highlighted. An that poll — assuming that the woman is the one who will be consenting rather than initiating? Ugh. Stereotypes ‘R’ Us, eh?

  38. So if a guy is top of me and I tell him to stop, how the fuck am I supposed to MAKE him stop? How, exactly, should I have a “similar” obligation to stop when he’s on top of me?

    You’re not supposed to make him stop. I’m just saying that perhaps not disengaging shouldn’t count against him unless you’ve had a go at physically disengaging. It seems a bit strange to criminalise him for not doing something you haven’t attempted to do yourself either.

    That’s the best way I can think of countering scenarios like paragraph 3 in #29. It does strike me as strange that, even in theory, so serious a crime can be committed entirely passively.

  39. That’s the best way I can think of countering scenarios like paragraph 3 in #29. It does strike me as strange that, even in theory, so serious a crime can be committed entirely passively.

    It’s not passive any more than it’s passive to fail to take your foot off the gas when the traffic light turns red, or to fail to put down the merchandise as you walk down the aisle and out of the store. Intercourse is active. Most of the time, you aren’t just lying there.

  40. sophonisba, I think the concern is that a man could be committing very serious criminal conduct while confused between “no, go back to what you were doing” and “no, stop that entirely.” Common-law attitudes toward rape are entirely insufficient to deal with (a) when the unethical behavior in this case becomes criminal behavior, (b) what act, specifically, is illegal, and ( c) what constitutes mens rea, and how that is to be proven by the prosecutor. It’s not clear to me that stopping thrusting does or even should constitute a defense, but it also doesn’t seem clear that every withdrawal of consent in the midst of sex would be clear enough in order to criminalize every thrust*.

    And, red, you’re right: this would never be tried unless, as with this case, there was a seriously coercive element otherwise. Unfortunately, unless the Maryland Supreme Court reverses this appeals court’s decision, there will have to be a legislative solution, and it’s unclear what that legislation will have to say in order to (a) criminalize all rape and (b) not rely on the failure to report a crime in order to achieve just outcomes.

    The law should reflect the opposite of this decision — but, as the court pointed out, the rape-as-property-crime model is completely insufficient to deal with it. My hypothetical was just wondering, from a public policy standpoint, what it should say.

    — ACS

    * I’m talking specifically about non-verbal withdrawal of consent — like, for instance, pushing someone’s thighs away. Non-verbal withdrawal of consent should allow a rape prosecution, but it’s not clear that all non-verbal withdrawal of consent would be clear enough to the perpetrator to cause him to have a reason to believe that consent was withdrawn.

  41. leederick, a scenario like paragraph 3 in #29 would not happen. If a woman were on top of you, and she no longer wanted to have sex, she would just get off of you. She wouldn’t sit there on top of you and tell you to stop, thus making you a rapist because you can’t remove your penis.

  42. … and I just realized that my original question caused a flood of people I really don’t agree with. I really didn’t mean it like that.

    — ACS

  43. The concept of free consent is still confusing to a lot of people, across the board andin legalese. The MD ruling aside – I won’t begin to parse it when Happy Feminist and others have done such a swell job – others on this thread are right. The confusion, particularly for the partner being asked to “disengage,” as it were, is about consent. One can always reverse consent.

    I’ve had this kind of confusion arise in certain precarious situations myself. For the record: male or female, top or bottom, if somebody says no, quit while you’re ahead.

    I don’t think prosecution of rape cases was ever a very good crime deterrent anyway, considering the low incidence of rape reportage in the first place.

  44. I’m just saying that perhaps not disengaging shouldn’t count against him unless you’ve had a go at physically disengaging.

    When he’s on top of me and I can’t? Dude, if I was on top/could physically disengage and I wanted to stop, I’d say, “I want to stop,” AND I’d disengage. Can’t do that when he’s on top of me. But apparently I should still be held accountable for not disengaging when someone is on top of me. Wonderful.

    I don’t want to get into the specifics of how I know I wouldn’t be able to disengage if someone was on top of me. But a guy who hears the no or the stop or the you’re hurting me can fucking goddamn well stop. It’s hardly his partner’s fault for not doing her part to control him like she’s his mommy and he’s her kid.

  45. I think the concern is that a man could be committing very serious criminal conduct while confused between “no, go back to what you were doing” and “no, stop that entirely.”

    I did say genuine confusion, because I don’t think there are many situations in which confusion would be genuine. I don’t think it’s asking too much, or even a great deal, for a man to distinguish between a mild “ow, hold still for a second” and an “STOP IT.” But if confusion persists – if he says, “What’s wrong?” and she’s unable to articulate anything beyond “Ow” or “I don’t like this,” clearly he needs to withdraw entirely. I haven’t a clue how to write clear law, so I won’t try, but I don’t see any particular difficulty in nailing this down in legalese as long as you’ve got a strong enough stomach. As a general ethical principle, of course, if you genuinely aren’t sure whether you’re assaulting somebody, you have to assume that you are, and stop.

    I’m talking specifically about non-verbal withdrawal of consent — like, for instance, pushing someone’s thighs away.

    Wow, really? I’m used to people arguing that a verbal objection is insufficient unless she proves she really means it by trying to fight him off physically, not so much to hearing it the other way around. As far as struggling’s concerned, I see the difficulty, but I don’t see that it’s much different from the difficulty with women who struggle in ‘normal’ rape cases – it can still be miscontrued, and the rapist can still claim that he thought it meant she wanted it, or that it was play-fighting.

  46. I’m just saying that perhaps not disengaging shouldn’t count against him unless you’ve had a go at physically disengaging. It seems a bit strange to criminalise him for not doing something you haven’t attempted to do yourself either.

    I know Sheelzebub already touched on this, but seriously, dude? When the guy weighs more than you do and is on top of you, really, physically disengaging is next to effing impossible. You’re pinned down. Most of us know this from actual experience. I sure as hell do. Once had to argue with a guy for an hour before he actually let me up. Don’t think I didn’t try moving myself to get up and walk away. I did. I couldn’t.

  47. I did say genuine confusion, because I don’t think there are many situations in which confusion would be genuine. I don’t think it’s asking too much, or even a great deal, for a man to distinguish between a mild “ow, hold still for a second” and an “STOP IT.” But if confusion persists – if he says, “What’s wrong?” and she’s unable to articulate anything beyond “Ow” or “I don’t like this,” clearly he needs to withdraw entirely.

    You’re right: is there likely to ever be a situation where the confusion persists until he has an orgasm? Fuck no.

    Wow, really? I’m used to people arguing that a verbal objection is insufficient unless she proves she really means it by trying to fight him off physically, not so much to hearing it the other way around. As far as struggling’s concerned, I see the difficulty, but I don’t see that it’s much different from the difficulty with women who struggle in ‘normal’ rape cases – it can still be miscontrued, and the rapist can still claim that he thought it meant she wanted it, or that it was play-fighting.

    I’ve seen both rejected in my work: a verbal objection without physical resistance and physical indications of lack of consent without verbal objection. There are situations that, in my mind, are clearly rape, where the moment at which consent is withdrawn is still ambiguous. Teasing out where the criminal act begins, or what constitutes it, is important because, otherwise, rapists — especially acquaintence-rapists — will continue to weasel out of rape convictions because the communication of consent can be construed as nebulous.

    — ACS

    * I’m thinking, specifically, of a case where a half-asleep (asleep enough to not quite understand what’s going on; awake enough to describe it to the police) person kept rolling away from the rapist and moving his hands away from her genitals. Does this constitute a lack of consent? Yes, it does. Does this constitute a denial of consent? Yes, it does. Did this case meet the standard set in our jurisdiction’s inadequate law? No.

  48. Piny, Raging Red;

    “If a woman can stop what’s going on just by withdrawing, then she’d probably do so, right?”

    “If a woman were on top of you, and she no longer wanted to have sex, she would just get off of you.”

    Okay, I’ve changed my mind on this.

    I was going to write that not everyone’s as physically assertive at the sort of feminists who hang around here. I can imagine social setups where women would vocalise their thoughts, but would be reluctant to physically do anything. But once you consider that sort of scenario it obviously becomes a lot more difficult to support the line of reasoning I was above.

    So I disagree with the quotes above. And that’s why I’ve changed my mind on this.

    Sheelzebub;

    Just so people don’t get the wrong idea.

    When he’s on top of me and I can’t? … But apparently I should still be held accountable for not disengaging when someone is on top of me. Wonderful.

    That’s never been what I was saying. All I was saying is that you should *attempt* to disengage. Clearly, if you try and can’t, and your partner knows but doesn’t care, then we can blame him.

  49. So basically they want to force us to finish sex and then they want to force us to have the baby that may result from the partner’s finishing even though we said stop (for whatever reason). I wish women could grow teeth with their vaginas, then we could just threaten to bite their dick off if they didn’t remove it.

  50. All I was saying is that you should *attempt* to disengage. Clearly, if you try and can’t, and your partner knows but doesn’t care, then we can blame him.

    Isn’t saying “Stop it and get off!” not an attempt to disengage?

  51. Isn’t saying “Stop it and get off!” not an attempt to disengage?

    Of course not, evil fizz. You have to also squirm around a lot. If you don’t squirm, it isn’t rape.

  53. banish this ruling back to the Cretatious period, where it belongs.

    Preferably riiiight before a certain asteroid/comet impact, aye?

  54. I think part of people’s difficulty with the ‘consent to sex can be withdrawn during sex rule’ is that it can make someone a criminal simply by having someone else vocalise a command, and without any active role on their part of the criminal.

    Last I checked, continuing to have sex was an action.

  56. leederick,

    what the fuck are you talking about?

    seriously, i am so tired of bullshit like this. so, what, as long as you’re NICE about raping someone, it’s all good?

    did you even read over what you wrote before you submitted it?

    jesus.

  57. oh, apparently you ‘withdrew’ (LOLOL) what you said before. whatever. what you said was still totally nonsensical and, in fact, INSANELY INSULTING. because this sort of shit is exactly the reason a couple of people I know still won’t believe I was raped. because they saw me walk off with my exboyfriend to have sex. but they don’t know what happened when we actually got around to doing it. but, you know, i left with the intent to have sex! so how could i have been raped omgwtfbbq!!

    That’s never been what I was saying. All I was saying is that you should *attempt* to disengage. Clearly, if you try and can’t, and your partner knows but doesn’t care, then we can blame him.

    ROFL!!!!!!!! ‘No’ is an attempt to disengage. I don’t know if you’ve ever been raped, but ‘no,’ whimpering, crying, etc. are attempts to disengage and I will tell you how fucking traumatizing it is for someone to not listen to you.

    If I had slapped the guy who raped me or tried to push him off of me, first of all, I’D be viewed badly for being violent, and secondly, he would’ve beaten the shit out of me and I know it.

  58. If I had slapped the guy who raped me or tried to push him off of me, first of all, I’D be viewed badly for being violent, and secondly, he would’ve beaten the shit out of me and I know it.

    And on the other end of it, if I’m having sex with my boyfriend and tell him to stop for a second because I’ve got a leg cramp, how fucked up would it be to have to hit him in the face to prove I mean it? I can just say stop and expect him to stop, because he’s not a sociopath or a rapist. Normal men understand words just fine.

  59. This is what normal, decent men do:

    I recall the first time I had intercourse with a man I’d known for some months. It had been a while since I’d had intercourse with anyone, and I was a little nervous. He had just barely started to enter me, and though it didn’t really hurt, I was unnerved and gave this sharp little intake of breath.

    He absolutely froze, looking at me with concern. We took a moment, talked a little, made sure I was okay and that I genuinely wanted to proceed. Then we went on. I could tell he was being extra careful. We had a good time.

    A non-story, in other words. An instance of a decent, normal, grown-up man acting the way a decent, normal, grown-up man should. There’s no doubt in my mind that if I’d been too scared to proceed, nothing more would have happened. We were friends.

    How bizarre that this should seem exotic. But I think most of the guys who typically comment here would act the same way. I get so angry when the general public discourse seems to assume that men’s sexual behavior is beyond their control. When casual conversation turns to how men are animals, or how women lead them on, or how men’s behavior has to be checked by women, blah blah blah, each of us needs to speak up more often and call it for the bullshit it is.

    I comment on various blogs from time to time, but whenever I’ve related a personal anecdote, I’ve gotten burned somehow, so please forgive me for the namelessness.

  60. What they all said.

    although reading arguments like this decision as well as people suggesting that “no” is not sufficient signalling to “disengage” is making -me- want to disengage someone, with extreme prejudice.

    physical amputation of an appendage would i suppose constitute a -disengagement-; would that communication be sufficiently clear?

  61. Exactly sophonisba… I remember the first time I tried to have sex after my daughter was born. I said I was ready, he was gentle, it hurt like hell. I started to cry, he stopped. Funny how that works, having ex with an actual human being who respects your right to say no.

  62. When I saw the number of comments for this post, I gulped and feared that people would be defending the decision. I read the comments anyway and was disgusted to see some pseudo-rationalization. What the hell is wrong with some people? Can’t they just accept that no means no or realize that it’s a GOOD thing not to hurt people if they can help it, instead of making up BS-y “what-if” scenarios to justify rape? (Obviously not directed towards most people, but the rape-defenders seriously depress me.)

  63. I wrote about this ruling in my blog and specifically why it’s a procedural fuck-up rather than a reflection of Maryland’s morality. Consent before penetration and consent after penetration are equally valid. Doesn’t matter if the guy’s balls turn a novel shade of blue — still valid if a woman (or a man) says no after it goes in.

  64. If I had slapped the guy who raped me or tried to push him off of me, first of all, I’D be viewed badly for being violent, and secondly, he would’ve beaten the shit out of me and I know it.

    Exactly. Thanks a lot for your imput, leederick, but not only is being forced to physically attack someone who can’t take no for an answer probably not going to work out for a woman who’s significantly outweighed, it’s also going to make the woman a violent maniac in the court of public opinion.

    You know how people say it couldn’t have been rape because the guy didn’t have a scratch on him? Know what they’re gooing to say if he does have injuries? That she’s a violent maniac, a psycho who targeted him and is now trying to further persecute the poor guy and even caused her own injuries to make him look bad.

  65. All I was saying is that you should *attempt* to disengage. Clearly, if you try and can’t, and your partner knows but doesn’t care, then we can blame him.

    “If your partner knows but doesn’t care” is the appropriate standard, not whether you’ve met some arbitrary “Mother May I” rule in expressing your wishes.

    If there’s ambiguity in someone’s withdrawal of consent, prosecutors and judges and juries are going to take that into account. But that’s not what we’re talking about here. We’re talking about someone unabiguously withdrawing consent during sex, and that person’s partner not stopping.

    If the withdrawal of consent is unambiguous, it’s irrelevant how or when it was expressed. Period.

  66. It seems a bit strange to criminalise him for not doing something you haven’t attempted to do yourself either.

    Um, have you ever actually had sex? I don’t mean that as a dig, it’s just that I’m not sure what exactly you’re visualizing here. A man shouldn’t have to stop penetrating a woman until she’s had a go at ceasing penetrating him? Maybe I’m just a lousy lay, but it seems to me that in the missionary position, at least, one partner is relatively acted on, at least in a grossly physical sense, and in that case, yeah, the onus does tend to fall on the other person to stop actually doing anything should that become necessary.

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  68. Suppose I get totally drunk and stoned out my mind. I collapse on my bed, and acquiess (sic) to let my partner stradle me and use me as a love doll.

    At this point, you are the rapee. Just so ya know.

  69. I have a medical question: does anyone know if men have an equivalent reaction to female vaginal lubrication during rape? for those of you who haven’t learned this yet – women can lubricate during rape despite the absence of arousal and presence of fear and pain. It’s a response of the nervous system, and says nothing about the mental state of the woman. many people think that it’s impossible for a woman to rape a man via PIV sex. it makes sense that there would be an equivalent reaction resulting in erection during sexual assault since the part of the nervous system that governs arousal is actually wired pretty similarly for men and women.
    guys, I’m not asking if your fly rubbing the wrong way gives you a hard on. I’m wondering specifically about responses during non-consensual sexual situations.
    just a question. I have no plans to start raping men.

  70. I think the law is fine. If a woman consents to sex and then changes her mind in the middle of sex because she doesn’t like it, her partner should stop. However, if he does not stop, i.e. he finishes, I still do not think he should be sent to prison for 15 years for rape. The woman initially consented to have sex with this person. Without this law, many women, who are out for revenge or are suffering from guilt associated with the act of sex, will abuse the Court system and innocent people will be jailed. I’m not condoning rape, I’m not even condoning the right of a male to “finish” after he has been told to stop, but unfortunately, rape has been used by women the world over to act out revenge or to deal with the issues of their shame. Everybody complains that women who are raped cannot get a fair shake in Court, they are humiliated and their “good names” are dragged through the dirt. Well , maybe the reason for that is the thousand of false accusations which are brought before the bench each year.

    \No, I’m not a male.
    \\ Yes, I have known a man who served 8 years in jail because a girl decided, after she started having sex, that she didn’t want to do it anymore. A female Judge convicted him, even though the “victim” spent 2 hours nude in a hot tub with the “rapist” and did a strip tease for him prior to the “act.”

  71. Frumious B,

    An erect penis can leak (mostly) prostate fluid, and a man doesn’t need to want an erection to have one. It’s at least uncommon for an (adult) man to have an erection while not aroused, though with drugs or apparatuses (cockrings) an erection could certainly be generated or maintained in the absense of arousal.

    However, as any good feminist would be quick to point out, even if arousal is present, that does not entail consent.

  72. Ummm…

    You folks are aware that by the girl’s own testimony, she told him to stop and he continued for 5 or 10 seconds, then stopped, did not try to continue, and that she gave him her phone number afterwards?

    The ruling, that withdrawing consent after penetration means it isn’t rape (though it may be assault, etc) is utterly absurd, and if it is an accurate reading of the law, means the law sucks.

    But this kid did not rape this girl on this occasion. It might show a lack of self control or rudeness to a sex partner, but not rape.

  74. Peter, the prosecution did not allege that it was just those five or ten seconds that made it rape. From the opinion:

    “The theory of the State’s case was that Jewel L. had not consented to the initial penetration.”

    The defendant, by her testimony, told her that it was “his turn” to have sex with her, and when she didn’t reply he said, “I don’t want to rape you.” She testified that she didn’t feel free to say no.

    The five or ten seconds thing was a side issue. It wasn’t the core of the case.

  75. You do realize, Peter, that you’re leaving out a big part of what happened leading up to this, don’t you?

    Mike put her hand down in his pants and asked her “to lick it.” Appellant then asked her to expose her breasts; when she did not comply, he fondled her breast with his hand.

    That, right there, is assault. She says no, they force the issue.

    After J*** acquiesced to the boys’ insistence that they stay ten more minutes, she found herself on her back with appellant removing her jeans and Mike sitting on her chest, attempting to place his penis in her mouth. After she told them to stop, the pair moved her around so that her body was up in appellant’s lap as he held her arms and Mike tried to insert his penis in her, but briefly inserted it into her rectum by mistake. After Mike again tried to insert his penis in the complainant’s vagina, appellant inserted his fingers in her vagina. After appellant exited the car, Mike inserted his fingers, then his penis into her vagina

    .

    This, AFTER SHE TOLD THEM TO STOP.

    When she was asked on the stand if she felt like she could say no, she said she didn’t feel like she could. And why would she? EVERY FREAKIN’ TIME SHE DID, THEY DID WHAT THEY WANTED ANYWAY.

    What they did was rape. Period. Amen. End of story.

  76. Peter, for FUCK’S SAKE, now you’re coming on the Feministe thread talking about how this girl gave the guy her number as if it’s relevant? I gave you a whole huge rant on Pandagon about how stupid that line is, and at least five commenters over there have told you how you’re already FACTUALLY WRONG about the facts of the case. Maybe you should go check back there first.

    Honestly.

  77. Oh you have GOT to be kidding me. Are some men really this stupid? Why are we arguing shades of grey here? There ain’t no such thing as default consent. PERIOD. All I should have to do to get a guy to stop fucking me is to say NO or STOP. That is IT. I shouldn’t have to move, hit, push, or do anything else to get him off of me. NO means NO and STOP means STOP. There are NO finer points to argue here. If you do not stop having sex with someone when they have told you to stop or they have told you no, YOU ARE A RAPIST. If you go right on ahead and have sex with someone and she has not explicitly told you YES or GO AHEAD or similar, YOU ARE A RAPIST. PERIOD.

    “Oh my god, I have to get her to say YES now?” YES YOU DO. While we’re at it, she has to say yes the FIRST time you ask. Telling you yes after you’ve asked her fifty times and gotten forty-nine NOs doesn’t constitute consent, it constitutes COERCION BY WAY OF WHINING. That’s not okay either.

    I can’t believe two Rules books about dating have been written for women but NOTHING like this has been put into a book for guys, who seem to need instruction in these matters a LOT more than women do. Jesus.

  78. When I originally read the comments about this case, I was thinking that it was sad that this woman/girl was in the position of having sex with some ass that wouldn’t stop when she asked him to, and then I read the case. She was a young woman, alone in a car with two guys, and she never really consented. She told the lawyer that she didn’t feel like she could say no. This particular case shouldn’t even bring up the question of when consent was withdrawn– it seems pretty clear that it was never given. She was coerced to have sex by two guys. What is so incredibly sad is that anyone could think that what the guys were doing up to the hypothetical point of non-consent was fine. This is why boys and men (and some women) feel it’s fine to coerce someone into having sex.

    Yeah, it’s a fine line between consensual sex and rape, if your definition of sex includes coercion, if you’re so inured to women’s feelings that you don’t even know when they do or do not want to have sex.

  79. Folks confused about how coercive the encounter was should read that portion of her testimony excerpted in the decision (which I included word for word in my comment at Feministing).

    It may or may not have been the case that at some point she was interested in some kind of sexual encounter with one or both of these guys. At some point, when she was alone with them parked in a secluded place, she did a number of things sexually that she did not want to do with them, including vaginal penetration, because she did not feel that she was free to go. Further, it is clear from the guy’s testimony that he was not trying to figure out whether she was into it or not. She clearly wasn’t . He was trying to get as much sexual gratification as he could out of her body without getting in trouble. That isn’t what most of us would call consensual sex.

    The prosecution was quite right that neither side’s theory of the case turned on the withdrawal after she said to stop. That question arose because a jury, probably trying to avoid a deadlock, worked out an internal compromise and sent the judge a note. It is almost chance that this proposition of law came up in the case. The real issue at trial is whether this was consensual ab initio.

    Surely, we would all agree that one should not be immune from a charge of rape simply because the circumstances render a threat of force so effective that the victim does not say no, or even can be made under duress to say yes. Surely we can all agree on that …?

  81. I’m starting to get uncomfortable with the notion of looking at the specifics of this case because it strikes me as tantamount to conceding that if she’d given uncoerced consent in the first place, there’d be some legitimate question about her right to withdraw that consent.

    I mean, this was clearly the wrong decision (er, maybe; it was the wrong decision if it means the guys are let go, it may not be if this means a new trial in which the jury only considers the general coerciveness), but a lot of people seem to me to be, in the face of the likes of Peter, backing away from the position that sex stops once any participant withdraws consent and retreating into coerced sex is always wrong. It is, but that doesn’t invalidate that sex stops once any participant withdraws consent.

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  84. The part that disturbs me most is that if I understand correctly, both of the males involved were under 18. So when they turn 18, those records will probably be sealed.

  85. OK, check this scenario: Let’s say the judge who made this ruling has his daughter/granddaughter/sister/aunt/mother, (you get the picture), in this situation. How quickly would this ruling be reversed? Faster than you could blink!!

    Unfortunately, the woman in this instance doesn’t have well-placed family members. (See G.W. Bush’s military service).

    If this ruling stands, I’d never visit Maryland.

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  87. As far as that bullshit hot-tub strip-tease story above, what happens before sex and what happens during and after sex aren’t necessarily the same. If I was attracted to somebody and said “let’s have sex”, thereby giving consent; and then their idea of having sex was to hit me with a hammer, you better fucking believe I’m going to say stop. And if anyone continues to have sex with someone after the point that they want to stop, it’s rape.

    Period. Just clearing that up.

  88. If you go right on ahead and have sex with someone and she has not explicitly told you YES or GO AHEAD or similar, YOU ARE A RAPIST. PERIOD.

    Just to let you know, this should be true, but it is not true in any jurisdiction that I’m aware of.

    — ACS

  89. This isn’t rocket science (although yes, I know that the law has some catching up to do in regards to womens rights). If you are having sex with a partner, REGARDLESS OF THE CIRCUMSTANCES LEADING UP TO IT, if you are told or gestured to stop with even the most minimal commands and you DO NOT do so, then you are a RAPIST. If you use any form of pressure or threat to coerce your partner into having sex with you, then you are a RAPIST.

  90. If you go right on ahead and have sex with someone and she has not explicitly told you YES or GO AHEAD or similar, YOU ARE A RAPIST. PERIOD.

    Just to let you know, this should be true, but it is not true in any jurisdiction that I’m aware of.

    Don’t remind us. :\

  91. I’m a bit confused at this court’s whole definition of “consent”. According to the victim’s statement reported by the Washington Post, she gave “consent” reluctantly because she felt she had no choice. So wasn’t this incident rape right from the start?

  92. I’m surprised no one mentioned frenchcheese’s “Bitches-are-crazy-and-just-want-to-hurt-good-boys-by constantly-crying-rape” bullshit.

  93. Sheelzebub – where did you find the specifics of the case? That would be handy to have in the face of all the sick fucks (like the perverts on broadsheet) saying she agreed to have sex and therefore it’s not rape.

  94. Peter whipped out the don’t-smoke-pot-or-you’ll-be-raped argument on Pandagon and got called out, so now he brings his rape apologist bullshit here.

    Wonderful, dude. Here’s some kleenex for when you’re finished.

  96. Jill, of course not everyone agrees with that proposition. But throwing out a bright-line rule can be a great rhetorical device. If a rape apologist takes the bait, there’s not much room to retreat from it.

  98. This conflicts me, in that I think Hershele has a point here. The circumstances of this particular case don’t mean that consent shouldn’t be able to be withdrawn at any time, and that it is rape if consent is withdrawn after penetration. Arguing the specifics of this case distract from that point.

    However, hearing the apologists regarding this case is making me angry. First, the guy said “I don’t want this to be rape.” You know, as a woman, there’s pretty much one way to interpret that – “Even if you say no, I’m going to continue. I’d just prefer you ease my ‘conscience’, so I can pretend I’m not a rapist.” At which point, you would feel threatened, ergo consent is not actually given.

    Also, the BS about the phone number. You know, first, people have explained why a woman might still continue to date a man who has raped her. I can also add, though, that in a situation in which you feel threatened, you might do anything you can to get out of it as quickly as you can. I have given out a phone number to get out of situations in which I felt physically threatened, because at least it ended that. I figured I could always ignore the phone calls. Giving out a phone number doesn’t always mean you want to see the person again. It just might be easier to tell them that over the phone rather than in a face-to-face situation where you fear you might get hurt.

  99. The “no means no” votes are up to 66% now… yay!!

    Wow, so if I said yes to some nice vanilla sex with somone, and durring the middle of the sex, this person tied me down and violently beat and fucked me while I screamed “Oh no stop!” it would not be rape?
    What kind of crack are these people smoking?

    So if a woman agrees to be spanked during sex, can the guy just beat her to a pulp? Hey, agreement to S&M is agreement, right?
    These people’s (the court) brains are wired different or something; they really are weird.

    Exactly what I was thinking!

    I wish women could grow teeth with their vaginas, then we could just threaten to bite their dick off if they didn’t remove it.

    Shit! I love that idea!!!

  100. Sheelzebub – thanks for the info.

    ~~
    “Lya, frenchcheese’s shtick is so self-evidently bullshit no one but you wanted to bother. ”

    No need for snarkiness. I was simply expressing surprise that no one said anything – because it was such over the top bullshit.

  101. the ruling it was taken from makes sense (paraphrasing)
    if sex was started with consent, withdrawall of consent doesnt make it rape.
    to me that means for what has allready happened.
    to interpret it as you dont have to stop when told to is bizarre.

  103. What Robert claims to mean is that if two people mutually consnet to sex, and one person withdraws consent, the other person isn’t a rapist retroactively but does have to stop.

    I’m not sure if Robert legitiately doesn’t understand the ruling or is pretending not to as a way of calling us all stupid.

  104. I dunno–I’m reading Robert’s post as saying that the judges’ interpretation of the law is bizzare. Robert? You might wanna clarify.

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