Degradation of Women in the Maryland Court of Appeals

This editorial was written by Rebecca Niose, UNM Alumnus and 1st year law student at NESL.

This week’s legal news has rightfully alarmed feminists across the nation. An appeals court in Maryland has reversed a decision that found a man guilty of rape. While there are many issues that a feminist might find interesting in this case, the most provoking issue that has perplexed the Maryland Court of Appeals is whether a person who consents to sexual intercourse may withdraw consent after initial penetration. The Baby v. State case exemplifies how archaic patriarchal philosophies are playing out in today’s legal system.

From a legal perspective, the Baby case has been remanded back to the trial court for a third trial. After the first trial, there was a hung jury resulting in a mistrial. The second trial found Mr. Baby guilty of first degree rape and other sexual offenses. Then the defendant raised an appeal, which is his right in our legal system. Reversing the decision on October 30, 2006, the highest court in Maryland failed to define consent in a way conducive to the basic human right of autonomy.

How the court chose to define consent determined the outcome of the Baby case. The prosecution produced cases to persuade the Court that when consent is withdrawn after initial penetration, continued sexual intercourse will constitute first degree rape. However, the Court of Appeals is under no obligation to agree with the precedents provided by the prosecution, which are from Maine, Connecticut, and Kansas.

The problem is that the precedent for the defendant is a Maryland Court of Appeals Court, mandatory authority for the state of Maryland. This precedent, Battle v. State, declares that there is no rape if a woman consents prior to penetration and withdraws consent after penetration. Under this theory, consent is viewed as being absolute. In describing the logic behind this case, Justice Davis traces the roots of this argument to ancient laws, where the injury of a rape was viewed to be economic damage to the father or the husband of the woman who was raped. For example, a virgin who was deflowered lost marriage value to the father. Based on similar reasoning, a woman who consented to being deflowered may not withdraw consent after deflowering, because the economic injury was already committed in the initial penetration.

Such reasoning flies in the face of women’s rights activists. A woman is not property. A woman has a right to change her mind. A woman may choose to have sex. A woman may choose not to have sex. Some people claim it is too hard to prove whether a sexual partner has consented to sex, but that is the responsibility of each person who chooses to have sex. It seems reasonable enough that each moment of sex must be a moment to which the sex partners consent. Conversely, each moment of unwanted sex is another moment of personal violation. When a person communicates that his consent is withdrawn, it is the responsibility of the other person to refrain from a continued violation.

After a series of sexual assaults Jewel, the complainant, stated in her testimony that she “just clicked off and I just did whatever they said.” Baby, at 4. Evidence was produced that rape trauma theory helps to explain Jewel’s seemingly inconsistent behavior. This evidence was not permitted to help determine the crucial issue of Jewel’s consent. The Court of Appeals chose to undermine Jewel’s behavior, criticizing the choices that she made regarding her attackers. The Court, confounded by Jewel’s reaction to the attacks, has chosen to blame the victim.

In the interests of justice, the Maryland Court of Appeals should have taken a stand for human rights in the Baby case. Courts may use judicial discretion to further important policy interests and overturn outdated precedents, which cause more harm than good. The Maryland Court of Appeals had a golden opportunity to recognize that women’s rights must be safeguarded in the common law.