Terrance Heath

No (Finally) Means No

Filed By Terrance Heath | April 18, 2008 9:58 PM | comments

Filed in: Politics, The Movement
Tags: law, male rape, Maryland, North Carolina, rape, sex, Women's Law Center of Maryland

I'd forgotten about this.

If a woman consents to having sex with a man but then during intercourse says no, and the man continues, is it rape?

In Maryland--as well as in North Carolina--when a woman says yes, she can't take it back once sex has begun--or, at least, she can't call the act rape.

That was the recent ruling by Maryland's Court of Special Appeals in a case that may soon make its way to the state's highest court and that has captured the attention of feminists and legal experts across the country. Advocates for victims' rights insist it's not just a matter of allowing a woman to have a change of heart. If the law doesn't recognize a woman's right to say no during sex, they say, there is no recourse for a woman who begins to feel pain or who learns her partner isn't wearing a condom or has HIV. Those who are wary of these measures say they're not arguing against having a man stop immediately when a woman no longer wants to have sex, but with how to define immediately.

Until I read this.

Women can say "no" at any time during intercourse, and a man can be convicted of rape if he doesn't stop, Maryland highest court ruled Wednesday.

In the case of a man convicted of rape in 2004, the judges decided a woman can withdraw consent at any time, even after agreeing to sex.

"The crime of first-degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration," the Court of Appeals wrote.

...Tracy Brown, executive director of the Women's Law Center of Maryland, said that before Wednesday's ruling, it was unclear whether a man refusing requests to stop during sex could be convicted of rape.

Brown said Maryland's decision means the law will match what people already believe -- that a woman's right to decide whether she wants sex does not end once sex begins.

"The decision is consistent with cultural standards," Brown said.

But an Illinois lawyer known for defending men, usually in custody battles, said the "withdrawn consent" standard can make it almost impossible to defend a man in rape proceedings. Jeffery Leving of Chicago said that's because the best defense in he-said-she-said situations is the lack of injury in the alleged victim.

"The only evidence in a rape case that's truly objective is personal injury, and now that's no longer the case in Maryland," Leving said. "It just seems like it's very, very unfair."

It's the kind of thing you hear the first time and think, "We needed a court decision to tell us this?"

But then, I find myself wondering, does this apply if the parties in question are the same sex? I mean, guys can be raped.

I know a guy can be overpowered by another guy, not because I've been raped. I have not. But there were a couple of occasions when I couldn't get a guy off me when I wanted to; when (yes) I'd changed my mind about what I wanted to happen; when I said no, but got held down and "dry humped" anyway, until he was satisfied. Nothing could have been construed as rape. Not even so much as a zipper was undone, no one was penetrated, and at best it could be described as "forced frottage". But it felt like a violation.

I haven't read Maryland's rape statute, but my guess it that the gender of the attacker and/or victim doesn't make much of a difference in legally defining rape. So, if a guy says "no" to another guy, my guess is that it still means "no."


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If this is true, then what stops a sexual partner from falsely claiming that he or she said "No!" in the middle of sex? Most sex takes place without outside witnesses ... It's the old William Kennedy Smith trial all over again!

Also, what happens if a woman decides to say "No" at the exact moment that the man ejaculates?

I'm not in favor of limiting the woman's power to say No ... but there are still some real conundrums here.

Yeah, and while we're at it A.J., what stops a sexual partner from falsely *claiming* that his or her partner said "Yes!" prior to sex? Most sex (and RAPE) takes place without outside witnesses...

Oh wait, that false claim is already made in all of the few rape cases that make it to court.

I don't see any conundrums in ruling that a woman (and by extension, I hope they mean any person) can withdraw consent at any point during sex. Proving "he-said she-said" situations have never favored the rape victim except when other factors like racism have been at play. He-said she-said cases are often dismissed, or the victims are counseled not to take it to court since they will likely lose, and it is not always worth it for the victim to be grilled and face their attacker in court when the rapist will just walk.

Acting like this ruling is a conundrum is pretty ridiculous. Does it present situations that are more difficult to prove in court? Yes. But they're more difficult to prove while making the case for the *victim*. Does this mean that a woman can be taken seriously now when she contacts the police and tells them that she initiated/consented to sex, but somewhere along the line she withdrew that consent and it became rape? I certainly hope so. But just because she will have a legal precedence for taking a case like this to court doesn't mean it will be any easier for her to get a conviction. In the absence of other physical injuries/physical evidence, most rape trials do not result in convictions.

People seem to forget that men aren't going to jail left and right over false rape accusations, in fact, it's just the opposite. Rapists are getting off way too easily most of the time. So every time a court makes a "DUH!" ruling that sets a precedence for women actually having the right to some sort of bodily integrity, and people come out of the woodworks to complain that this is just going to present yet another conundrum for men...I call bullshit.

Jessica, I can appreciate your passion but I don't think T meant this as a men vs women post. I believe that this will present some conundrums - not just for men but for women as well.

Don't get me wrong - I think the law is a step in the right direction but it just doesn't feel as if we've still got it right. A.J. is correct in saying that this could be twisted against some men who didn't rape anyone, but you're also correct in saying some men will claim that fake Yes "before sex." Both sides have valid concerns.

I can say though as a man who's been raped that when I reported it to the police I was told that men didn't get raped and if I didn't want rough sex I shouldn't have been hanging out where queers gather. Seriously. There was no "Yes" when they clubbed me upside the head.

A situation like mine is easy to see as rape. Violence and forced violation. But when there is a claim - no matter how false - of willing penetration, things can get murky. I think this presents a conundrum not just for men but for the legal system at large.

I love Jessica's comment. Nothing else to add.

Bil, I actually had no problem with Terrance's post, I thought it was great. The only thing I would have added to it was the fact that the woman was being raped the entire time this man was penetrating her, not just the 5-10 seconds he continued thrusting after she told him to stop and tried to push him off. For anyone unfamiliar with the case or why I would be calling the entire encounter rape, I'm going to re-direct you to a great post by Cara over at The Curvature

And while I understand that yes, anyone can lie about anything, and that lying on either side of a case is a valid concern...it pisses me off that there is always someone (in this case A.J.) who feels the need to come and point out that this presents some novel conundrum for the accused. One more distinction of what rape is does not more false accusers make. Worries about this being used as a tool to falsely accuse are really quite overblown, seeing as the majority of true rape cases never even make it to court for lack of evidence. The ruling didn't magically lessen the burden of proof, it expanded the situations which could legally be considered rape.

So I'm sorry, but I can't help but take offense when people whine that rulings like this can be used for a new kind of false accusation. (As if a case where a woman said the man didn't stop immediately because he happened to be ejaculating at that very moment would EVER make it to court...I mean, seriously. We can wax poetic all day about the crazy situations that might occur and they would still never see the light of a courtroom.)

Personally, I wouldn't call this ruling a step in the right direction...I would simply call it the right decision. The fact that unethical people can use any legal predecence to their advantage doesn't somehow render this ruling incomplete. If you think this ruling is only a step in the right direction, I would really like to hear what a more complete/all-encompassing decision would have been (aside from using gender-neutral language)? I don't think I understand what you meant by that, and I would sincerely like a response, since it would help me better comprehend what you meant by your comment. I know the internet doesn't do justice to tone of voice, so I just want to make it clear that I am not trying to be snarky or rude in this request, I am genuinely curious what you have to say.

And Bil, I am deeply sorry for what you went through. The fact that a clear-cut rape was invalidated because of your gender is abhorrent. You are right that rapes without the same level of clear-cut violence are murkier. But this murkiness is nothing new, because the majority of rapes are not so clear-cut (i.e. there is often little or no physical evidence, and there is often little violence aside from the rape itself). This ruling doesn't make things much murkier than then already are, in my opinion. The only real problem I foresee is even more difficulty for a victim trying to prove a case of withdrawn consent. However, the right to report this kind of an assault and have a legal precedence requiring that you be taken seriously is immensely important, and for that, I am thankful.

*sorry in advance if this double posts...my browser was acting up while I tried submitting it the first time*

Bil, I actually had no problem with Terrance's post, I thought it was great. The only thing I would have added to it was the fact that the woman was being raped the entire time this man was penetrating her, not just the 5-10 seconds he continued thrusting after she told him to stop and tried to push him off. For anyone unfamiliar with the case or why I would be calling the entire encounter rape, I'm going to re-direct you to a great post by Cara over at The Curvature: http://thecurvature.com/2008/04/17/maryland-court-rules-that-no-actually-means-no/

And while I understand that yes, anyone can lie about anything, and that lying on either side of a case is a valid concern...it pisses me off that there is always someone (in this case A.J.) who feels the need to come and point out that this presents some novel conundrum for the accused. One more distinction of what rape is does not more false accusers make. Worries about this being used as a tool to falsely accuse are really quite overblown, seeing as the majority of true rape cases never even make it to court for lack of evidence. The ruling didn't magically lessen the burden of proof, it expanded the situations which could legally be considered rape.

So I'm sorry, but I can't help but take offense when people whine that rulings like this can be used for a new kind of false accusation. (As if a case where a woman said the man didn't stop immediately because he happened to be ejaculating at that very moment would EVER make it to court...I mean, seriously. We can wax poetic all day about the crazy situations that might occur and they would still never see the light of a courtroom.)

Personally, I wouldn't call this ruling a step in the right direction...I would simply call it the right decision. The fact that unethical people can use any legal precedence to their advantage doesn't somehow render this ruling incomplete. If you think this ruling is only a step in the right direction, I would really like to hear what a more complete/all-encompassing decision would have been (aside from using gender-neutral language)? I don't think I understand what you meant by that, and I would sincerely like a response, since it would help me better comprehend what you meant by your comment. I know the internet doesn't do justice to tone of voice, so I just want to make it clear that I am not trying to be snarky or rude in this request, I am genuinely curious what you have to say.

And Bil, I am deeply sorry for what you went through. The fact that a clear-cut rape was invalidated because of your gender is abhorrent. You are right that rapes without the same level of clear-cut violence are murkier. But this murkiness is nothing new, because the majority of rapes are not so clear-cut (i.e. there is often little or no physical evidence, and there is often little violence aside from the rape itself). This ruling doesn't make things much murkier than then already are, in my opinion. The only real problem I foresee is even more difficulty for a victim trying to prove a case of withdrawn consent. However, the right to report this kind of an assault and have a legal precedence requiring that you be taken seriously is immensely important, and for that, I am thankful.

...it pisses me off that there is always someone ... who feels the need to come and point out that this presents some novel conundrum for the accused.

And it pisses me off to be painted as a misogynist simply because I pointed out that applying this new legal precedent could raise further difficult questions.

Your comments, Jessica, give me the impression that you believe the woman's word on what happened should always be given the benefit of the doubt over the man's. I dare you to provide one sound legal argument why this should be so.

Granted, a man's sex drive can be a pretty powerful thing ... I remember this fist-hand from when I was younger. But a person's sense of greed can also be pretty powerful, too, such as when the man being accused of rape is someone famous, wealthy, or both, such as in the cases of Smith, who I mentioned above, or Kobe Bryant, or Chris Rock.

I don't know what happened in those particular cases, because I wasn't there ... but I have private doubts about how much such cases might be about sex and how much they might be about money.