"The courts got it wrong then, and they are getting it wrong now," said Feit, who has followed the Maryland case. "There is no way that anyone is ever going to convince me that a five-second delay is first-degree rape."
He said that he, too, believes that a woman should be able to withdraw consent during sex. But he said the evidence showed that Baby did comply with the victim's demand to stop and that the jury in the case "threw common sense out the window" when they convicted him.
"This is a dangerous ruling," he said. "What the court is saying is that every act of sexual intercourse in Maryland is potentially a rape, and if a man doesn't stop on a dime, he's going to jail."
But women's advocates and lawyers said the high court's ruling was important because it makes clear that Maryland no longer relies on outdated common law in rape cases.
"Common law is an antiquated system where women had less rights," said Marie Lilly, an educator at Turnaround Inc., a Baltimore-based nonprofit for victims of sexual assault and domestic violence. "This brings us into the 21st century."
In overturning Baby's convictions, the Court of Special Appeals wrote that the high court's 1980 opinion remained the last word on the subject of withdrawal of consent because neither the top court nor the legislature had since addressed it.
That appeals court, the state's second-highest, sided with defense attorneys who argued that the 1980 opinion held that rape does not occur if consent is withdrawn after penetration.
In arguments in October before the Court of Appeals, the assistant public defender, Michael R. Malloy, said the 1980 opinion was of critical importance and that the Montgomery County judge's failure to mention it during jury instructions in Baby's case was misleading and illegal.
Instead, when jurors asked Judge Louise G. Scrivener whether sex that begins consensually but continues after the woman tells the man to stop constitutes rape, she replied that it was "a question that you as a jury must decide."
At the October hearing, Assistant Attorney General Sarah Page Pritzlaff argued that the judges should overrule the 1980 opinion because it "was wrong in spouting some of that old common law."
The "archaic stereotypes of women and rape upon which common-law rape is apparently premised are obsolete," the state wrote in its appeal.
The high court was itself conflicted about the 1980 ruling.
