Maryland's highest court heard arguments yesterday in a case closely watched by national and state women's groups regarding whether consensual sex can become rape if a woman says no in the middle of the act.
Representing the state, Assistant Attorney General Sarah Page Pritzlaff urged the Court of Appeals to reverse a lower court's decision issued last year. She argued that when force is applied, the act qualifies as rape even if there was initial consent.
"It's rape when the woman says, `I've changed my mind,' and the man continues to use force or threat of force," she told the judges.
"You clearly have the element of force, you have the resistance by the victim," she said, noting that the victim was bleeding. "The victim was quite clear that it was hurting, that she wanted him to stop."
But Assistant Public Defender Michael R. Malloy argued that, under existing common law and according to a 1980 opinion from the high court, if a woman says yes to intercourse initially and then says no, it's not rape.
The judges posed tough hypothetical questions to the attorneys, and some expressed doubt that there was ever consent to have intercourse in this particular case.
"I have a hard time finding where there was ever any consent," said Judge Dale R. Cathell.
At issue is a decision by Maryland's Court of Special Appeals that overturned the 2004 first-degree rape conviction of Maouloud Baby of Montgomery County. A friend of Baby's pleaded guilty to rape charges in the case.
The case has landed on the radar screens of women's groups across the country that hope Maryland will join seven other states whose courts have concluded that a woman can revoke her consent after intercourse has started.
Only Illinois has a state statute addressing the issue.
Representatives from the Maryland Coalition Against Sexual Assault and the Women's Law Center of Maryland, who filed legal briefs in support of the state's position, attended the hearing. Two national groups - the National Crime Victim Law Institute and the National Alliance to End Sexual Violence - signed onto their legal filing.
Critical issues
Meg Garvin, director of programs for the Oregon-based National Crime Victim Institute, called the issue at stake "critical."
"While there are only two states that have this withdrawal of consent - Maryland and North Carolina - it's still a huge problem for rape victims and buys into too many of the myths of rape," said Meg Garvin, director of programs for the institute.
