Debating the rules of sexual consent

Women should be able to say `no' any time, groups say

April 02, 2007|By Andrea F. Siegel | Andrea F. Siegel,Sun reporter

It could be anything from pain to fear of HIV to a change of heart: A woman's "yes" turns to "no" during sex. But what if her partner persists?

Maryland's two largest women's advocacy groups have urged the state's highest court to say that consensual sex can become rape if a woman says no at any time - a conclusion reached by courts of seven other states.

The organizations are supporting a Maryland attorney general's office request last month that the Court of Appeals overturn a lower court's recent decision. If the Court of Appeals agrees to take up the case - and court-watchers suspect it will - judges could hear arguments this year.

"For sure, this is not the last word on this," said Andrew D. Levy, a University of Maryland law professor, noting that "to say once there has been penetration, all bets are off ... is an extremely dicey proposition."

To have the law say anything else, victim advocates say, denies people the right to control intimate access to their bodies in favor of another person's unwanted and perhaps violent sexual demands. The advocates say law students from Wisconsin offered them free research help; feminist blogs have burst with outrage at the current interpretation of the law.

In their legal filings, the Maryland Coalition Against Sexual Assault and the Women's Law Center of Maryland say it's "astonishing" to suggest otherwise and justify it with archaic ideas that don't mesh with current knowledge, understanding and circumstances.

"Most women can think of a number of very legitimate reasons why a woman would want someone to stop," said Jennifer Pollitt Hill, executive director of the coalition, listing pain, absence of a promised condom, violence and a partner's confession that he is HIV-positive among them.

Maryland is not the only state to face this issue in recent years. Legal experts say the rise of feminism more than 40 years ago has led to rewriting laws - notably about rape and domestic violence, crimes that can have male victims as well as female, they point out.

Of the few states that have considered the issue, the top courts in Alaska, California, Connecticut, Kansas, Maine, Minnesota and South Dakota have ruled that a woman may turn her "yes" to "no" at any time.

In 2003, Illinois become the first state to adopt a no-at-any-time law.

North Carolina courts rejected that line of thought in a 1979 decision. The recent Maryland ruling took its cue from a 1980 Maryland opinion that commented that "if she consents prior to penetration and withdraws the consent following penetration, there is no rape."

Men's advocate Anthony Nazzaro, producer of MensNet, a public access cable television show in New York, said he's heard from men who insist that once a woman has consented "it's her obligation to finish what she started." Some perceive that ending consent partway through sex is "abusive" to men, he said.

A partner who does not stop when asked should not be charged with rape, Nazzaro said, arguing that brutal penetration is different from failure to end previously agreed-upon activity.

"It should be a lesser charge of sexual abuse or assault and battery," he said.

Those leery of no-at-any-time rules - which they say heighten worries about false rape accusations - say that, although they believe a man should respect his partner's wishes to stop immediately, the discussion can't end there.

For instance, what's "immediately?"

The sole California Supreme Court justice who dissented in its precedent-setting 2003 case raised just that issue. She noted that the youth convicted in that case asked the girl for additional time at least twice over several minutes after the girl repeatedly told him she wanted to leave.

Justice Janice Rogers Brown criticized the majority for not saying, "How soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force?"

Biological argument

The California defendant's lawyer had made a biological argument, contending, "It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge."

Mel Feit, executive director of the National Center for Men in Bethpage, N.Y., made a similar argument about the Maryland case: "I think five minutes is too long, and five seconds is not rape. I think the question is, `Does it look as if he disregarded what she said?' "

But women's activists say talk of men needing extended time to regain control of themselves is overblown if not downright offensive to men.

"It is contrary to the common experiences many of us have had. If you are husband and wife and your toddler walks into the room, you stop pretty quickly. Go back even further - teenagers, if their parents walk in," said Lisae C. Jordan, legislative counsel for the Maryland Coalition Against Sexual Assault.

A jury can take up the question of what's a reasonable amount of time for the man to halt intercourse, she said.

Jordan added that the situation has parallels in other crimes - trespass, for example.

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