Here Come Da Judge

On April 16, the Washington Post reported:

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.  The court ordered a new trial for Maouloud Baby, who was convicted of raping a woman in a car in 2003. The woman had just had sex with another man, and Baby asked the man if he could "hit that" also.  Baby testified that the woman agreed, as long as Baby would stop when she told him to. The woman testified that Baby continued having sex with her for five to 10 seconds after she asked him to stop.

First, let us make one thing perfectly clear - no one at Scragged is at all in favor of non-consensual sex, that is, men forcing sex on women who don't want to have sex or vice versa.  The point of this article is not to argue either way on specific rape cases, but to point out some of the difficulties and potential hazards which arise from ambiguities in the law.

At Baby's original rape trial, the judge ruled that it was up to the jury to decide whether continuing with intercourse after the woman withdrew her consent constituted rape.  The second-highest court overturned the rape conviction entirely.

The highest Maryland court not only ruled that a woman could withdraw consent at any time and turn what had been consensual sex into rape the moment she withdrew her consent, they also ruled that the judge at the first trial was correct in admitting evidence from an expert in what's called "rape-trauma syndrome."  The expert explained to jurors why the victim's behavior might have seemed inconsistent with someone who'd been raped.

By admitting this expert testimony, the highest court ruled that a man could be tried for rape entirely on the alleged victim's say-so even when there is no other evidence of rape whatsoever.  Intercourse was known to have occurred in this case, of course, so the physical evidence didn't matter either way.  The accuser had not acted like a rape victim, but that was OK based on the expert's testimony being admitted as evidence.

Mr Baby has to stand trial again for rape.  The highest court in his state has ruled that consensual sex becomes rape the moment the woman changes her mind and that it's proper to admit expert testimony that a woman can credibly claim to have been raped even if she doesn't act like a rape victim.  How could anyone defend himself in a situation like that?

Prior law had said that "initial penetration completes the act of intercourse."  Consent could not be withdrawn after penetration under the older definition of intercourse.  The defense bar believes that this new ruling will make it more difficult for men to defend themselves against rape charges.

... 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."

He Sayeth Not His Pater Nosters

Various state laws have tended to assume that men are more likely than not to have sex in mind when they take women to hotel rooms.  A web site which gives information about New York State divorce law points out that when a man is charging his wife with adultery as part of a divorce action, the fact that she was alone with another man in a compromising situation does not necessarily convict her of adultery.  The site quotes a case to illustrate that the law has different standards for convicting men and women of sexual misconduct:

On the other hand, a husband who spends some time in a hotel or motel room with the "other woman" may be subject to the presumption that "he sayeth not his pater nosters there." Kerr v. Kerr (1909) 134 App Div 141, 118 NYS 801.

"He sayeth not his pater nosters there" is a quote from a very old British case where a husband was accused of committing adultery.  Witnesses agreed that he and a woman had left the common room of the inn and gone upstairs.  Some time later, they rejoined the company.  Although there were no witnesses to what the man and woman had done while they were upstairs, the judge ruled that it could be safely assumed that they had not gone upstairs to have a prayer meeting.  The presumption that a man invites a woman to his hotel room for sexual purposes entered New York law in 1909.

A similar presumption helped William Kennedy Smith win acquittal when he was charged with rape in 1991.  He met a woman at a singles bar and took her back to the Kennedy compound.  Sex ensued.

He said it was consensual; she claimed rape.  Part of the defense argument was that women should know why men take women home after meeting them in bars; the jury clearly agreed.

When Kobe Bryant was visiting Vail, Colorado, on the night of June 30, 2003, a 19-year-old front-desk clerk went to his room.  She said they kissed and flirted and that he then became violent; he said the flirting led to consensual sex.  Mr. Bryant, like Mr. Smith, admitted that he'd has sex but claimed that the sex was consensual.  The woman said she had not consented; rape charges were brought against Mr. Bryant.

To be fair to all concerned, in the absence of physical evidence of injury, it's extremely difficult to achieve justice in "he said, she said" cases.  The usual defense is to attack the accuser's mental stability and to assert that she has had sex with many other men; this is sometimes known as the "nuts & sluts" defense.  The press had a field day when the prosecutors made the accuser's name public by posting it on a web site.  Many commentators believed that the ensuing public notoriety and comment was far worse for the victim than having been raped could ever be, assuming that's what actually happened.

At the height of the publicity, a friend of mine was standing behind two young ladies in a checkout line.  It became clear from their discussion of Mr. Bryant that they believed that it was OK for a woman to give consent and then decide she'd been raped if she felt bad about it the next morning.  When he asked them if they were serious, they replied, "It's rape if I decide later that I didn't like it."

Any parent of more than one child knows full well how hard it is to find the truth in cases where the only evidence is the testimony of the participants.  "He hit me."  "Did not."  "Did too."  What's a parent or judge to do?

It Used to be a Capital Offense

Handling rape has been tricky for centuries.  Jewish law of 5 or 6,000 years ago made rape of a woman who was either married or betrothed a capital offense:

If there be a damsel that is a virgin betrothed unto a man, and a man find her in the city, and lie with her then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die: the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbor's wife; so thou shalt put away the evil from the midst of thee.  But if the man find the damsel that is betrothed in the field, and the man take hold of her, and lie with her; then the man only that lay with her shall die. But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death; for as when a man riseth against his neighbor, and slayeth him, even so is this matter.  For he found her in the field; the betrothed damsel cried, and there was none to save her. - Deuteronomy 22:23-27

It's interesting that the woman would suffer the death penalty if she did not scream for help.  Modern victims deal with the "screaming for help" issue by claiming that they were commanded to silence under pain of death or mutilation.

The book of Suzanna, which is part of the early Jewish writings, highlights the difficulty of defending someone against false charges of sexual misconduct.  Suzanna was a beautiful wife who refused the advances of two influential men.  In retaliation, they accused her of adultery and she was condemned to death.

Fortunately for Suzanna, the prophet Daniel heard of her difficulties.  In classic Perry Mason style, Daniel got the charges dismissed by cross-examining her accusers and highlighting inconsistencies in their testimony.  The story demonstrates the triumph of good over evil, of course, but it also recognizes the subtleties in finding the truth in such cases.

Being hit with the "nuts & sluts" defense is extremely unpleasant for a woman who accuses a man of rape.  Many states have "victim shield" laws which prevent the defense from bringing up the accuser's sexual history or mental history.

In the case of William Kennedy Smith, some commentators believed that the case was as good as lost when the prosecution was unable to persuaded the judge to admit the testimony of other women who said they'd been sexually assaulted by Mr. Smith.  Demonstrating that Mr. Smith had a history of misbehaving with women would have increased the accuser's credibility.  Similarly, demonstrating that the accuser had a history of sexual license would decrease her credibility, but many judges are reluctant to subject an accuser to that sort of ordeal.

Now that a woman can withdraw consent at any time, at least in Maryland, it's not clear that an accused rapist has any viable grounds for a defense and the whole thing will boil down to whom the jury believes.

As the rules surrounding modern rape trials have become more subtle, lawyers' fees have gone up.  Some reports claimed that the legal fees in the William Kennedy Smith were about $1 million.  Kobe Bryant's legal fees were supposedly in the $4-5 million range and it was reported that he gave his wife a multi-million dollar diamond as a gift at the height of the publicity.

In such cases, the only winners are lawyers.  Any man unable to come up with multiple millions would surely be imprisoned regardless of the facts of the case; is this truly "justice"?