Decision by Court of Appeals could change definition of rape
Until now, neither the Court of Appeals nor the state legislature has taken action to clarify whether post-penetration loss of consent is considered rape.
Since 1976, Maryland criminal law has defined rape in the first degree as "vaginal intercourse with another by force, or the threat of force, without the consent of the other."
"If she does effectively communicate 'Stop now,' and he continues with force against her will, there is penetration. There is vaginal intercourse going on after she says stop. Why isn't that rape? Why isn't every element of the statute then in place?" Judge Dale Cathell asked.
"Unless the legislature specifically changed, which they did not, the rule that consent has to be before penetration, then the common rule still would apply," Malloy responded.
In 2003, an 18-year-old student at Montgomery College claimed she was raped by two high school students. While his friend plead guilty to the charges, Maouloud Baby, then age 16, was tried for rape as an adult in Montgomery County Circuit Court in 2004.
According to testimony, the woman agreed to have sex only if Baby would stop if she said so.
Cathell questioned of whether the victim had actually given consent in the first place.
She further testified that when the pain of intercourse became too much, she asked Baby to stop and he continued for "about five or so seconds." Baby testified that he "stopped immediately" after consent was withdrawn.
The jury was given the definition of rape as "the unlawful intercourse with another by force, or threat of force, and without consent." During deliberation the jury sent a note to the judge requesting to know "if at any time the woman says stop, is that rape?"
The judge elected not to answer this question, stating that "this is a question that you as jury must decide. I have given the legal definition of rape which included the definition of consent."
Malloy argued that this action by the judge was unfair. "The defendant cannot get a fair trial if the jury doesn't know what the law is," he said.
The Court of Special Appeals overturned Baby's conviction by this jury of first-degree rape, first-degree sexual offense and two counts of sexual offense in the third degree. Baby had been sentenced by the jury to five years imprisonment and five years of probation.
The Undergraduate Student Handbook does not define rape but states that Hopkins students are expected to refrain from "conduct that constitutes sexual abuse, assault, or rape of another person," under threat of discipline and removal from the University community.
Since 1976, Maryland criminal law has defined rape in the first degree as "vaginal intercourse with another by force, or the threat of force, without the consent of the other."
"If she does effectively communicate 'Stop now,' and he continues with force against her will, there is penetration. There is vaginal intercourse going on after she says stop. Why isn't that rape? Why isn't every element of the statute then in place?" Judge Dale Cathell asked.
"Unless the legislature specifically changed, which they did not, the rule that consent has to be before penetration, then the common rule still would apply," Malloy responded.
In 2003, an 18-year-old student at Montgomery College claimed she was raped by two high school students. While his friend plead guilty to the charges, Maouloud Baby, then age 16, was tried for rape as an adult in Montgomery County Circuit Court in 2004.
According to testimony, the woman agreed to have sex only if Baby would stop if she said so.
Cathell questioned of whether the victim had actually given consent in the first place.
She further testified that when the pain of intercourse became too much, she asked Baby to stop and he continued for "about five or so seconds." Baby testified that he "stopped immediately" after consent was withdrawn.
The jury was given the definition of rape as "the unlawful intercourse with another by force, or threat of force, and without consent." During deliberation the jury sent a note to the judge requesting to know "if at any time the woman says stop, is that rape?"
The judge elected not to answer this question, stating that "this is a question that you as jury must decide. I have given the legal definition of rape which included the definition of consent."
Malloy argued that this action by the judge was unfair. "The defendant cannot get a fair trial if the jury doesn't know what the law is," he said.
The Court of Special Appeals overturned Baby's conviction by this jury of first-degree rape, first-degree sexual offense and two counts of sexual offense in the third degree. Baby had been sentenced by the jury to five years imprisonment and five years of probation.
The Undergraduate Student Handbook does not define rape but states that Hopkins students are expected to refrain from "conduct that constitutes sexual abuse, assault, or rape of another person," under threat of discipline and removal from the University community.
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