The Maryland Rape Case

This was kicked around the blogosphere earlier, but I'll give it some new life as a way of introducing Jon Siegel's new blog, Law Prof on the Loose. A court in my home state of Maryland ruled that a woman can not withdraw consent in the middle of sex--if she does, then it's not rape.

[T]he English common law . . . view[ed] the initial "de–flowering" of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party - the father or husband. This initial violation of the victim also provided the basis for the criminal proceeding against the offender. But, to be sure, it was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male's interest in a woman's sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be "re-flowered," that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape. Maryland adheres to this tenet.

As I told my friends upon hearing this, normally I'm quite proud to hail from Maryland, but this is shameful and appalling.

Now, as Siegel notes, the facts of this case are somewhat complex--apparently, the man stopped intercourse within five seconds of being asked. It is not clear to me whether that should count as rape--that seems like a reasonable amount of time between being told to stop, and stopping. But the categorical holding that rape cannot happen after the original penetration is shocking.