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Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 2, 2006

Maryland Court: A Woman Cannot Withdraw Consent During Intercourse

From A three-judge panel of the Maryland Special Court of Appeals reinforced the provision of Maryland's rape law that says a woman who gives consent prior to intercourse cannot withdraw her legal consent during the act. The decision came recently when the Court overturned a rape conviction. During deliberation in the original trial, the jury had asked, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind and the... man continues until climax, does the result constitute rape?" The trial judge said that Maryland’s law was unclear and would not provide a definite answer.

The Special Court of Appeals, however, disagreed with the trial judge's interpretation of the law. Current Maryland rape law is "not ambiguous," said the ruling; if a woman consents prior to sex, she may not withdraw her consent during the act and accuse her partner of rape if he continues the act.

Women's rights groups are outraged by the ruling. "You should have the right to say no at anytime and that should mean no and if sexual acts continue after you've withdrawn your consent, they should be considered a crime," said Jennifer Pollitt Hill, a member of the Maryland Coalition Against Sexual Assault, to WJZ, a local television station. According to WJZ, several decision-makers have already said they wish to address the issue in the upcoming legislative session, though legislation that would have given women the right to withdraw consent at anytime has failed in both 2004 and 2005.

Maryland is one of two states that have ruled that women do not have the right to withdraw consent. Seven other states have ruled that women may withdraw consent at anytime.

Read Opinion. . . [Mark Godsey]

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Mr. Godsey, You are playing into the hands of people who have not read the opinion. In doing so, you have converted the discussion from a legal to one of purely political rhetoric. There is nothing in the opinion to suggest that women do not have “the right” to withdraw consent. The question if whether the definition of rape, includes a failure to withdraw after consents is withdrawn.

Merely because someone might not face criminal sanctions does not mean that a “victim” loses a right. Just because the defendant has a “right” to invoke a rule of lenity doesn’t mean that the “victim” somehow loses a right.

The “victim” is free to sue the defendant and seek compensation under another theory.

I think the feminist groups have done far more damage to women by simply not picking apart the opinion line by line, then by jumping to such strange conclusions. Women may now think that it is acceptable to speak about opinions without reading them, which will truly result in their subjugation.

Posted by: anon | Nov 3, 2006 3:35:20 AM

I do not believe most people are arguing with the ruling made, but with the law itself. Unlike the other responder, I believe that being able to "seek compensation under another authority" is not what a woman that has gone through such a matter is looking for. To say that this law is just is to say that a woman who agrees to have sex with a man then gives up all rights over her body until her partner has climaxed. I cannot see how a person who hears their partner clearly ask them to stop and does not cannot be seen as committing a sexual assault. This law needs to be overturned.

Posted by: Tricia | Nov 5, 2006 9:32:21 PM

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