[An excerpt from a legal opinion that argues that women do not have the right to withdraw consent during sex. This likely does not represent J. Davis' personal views, but is based on common law notions of women as chattel.]
The pertinent question is whether that pronouncement is an accurate statement of the English common law which is, conceptually, the genesis of the notion that there is no rape where the prior consent is followed by penetration and then withdrawal of consent. Battle says that it is. The concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law,views 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, having adopted the common law, which remains the law of the Land until and unless changed by the State’s highest court or by statute.
26 comments
And this is why, in a modern, civilised society, the practice of declaring a woman to "belong" to a man, or placing undue emphasis on her virginity, is seen as completely fucking crazy.
This is an abhorrent law. I'm not sure you can blame J. Davis, though: his job is to report on what the law currently says, and unfortunately it appears to say this pile of crap.
What's needed is for everyone in Maryland to contact people who *can* do something about changing the law, as soon as possible.
So only a virgin can be raped. Once you've been penetrated you're damaged goods anyway, so your consent doesn't matter anymore. How very Christian.
This is probably more suited to the forum, but I have to tell you guys I have absolutely had it with these people. Some complete asshole slipped a Chick tract ("This Was Your Life"--with the nice images of everlasting fire) into my 9 year old's Halloween bucket last night during trick-or-treating. It's just lucky my son didn't see who did it, because s/he would have been in the ER having that vile garbage surgically removed and I would be in jail.
@Marnanel
This is an abhorrent law. I'm not sure you can blame J. Davis, though: his job is to report on what the law currently says, and unfortunately it appears to say this pile of crap.
The law is what the legislator or judges say it is. Precedent has no weight if the courts so decide. This judge could have easily ignored this precedent as anachronistic and overturned by modern statutory law.
I tried reading the court opinion and best I can tell is the conviction was reversed because prosecutors attempted to prove rape by establishing post rape syndrome; they failed in showing a correlation so the previous ruling was reversed. From the document it's difficult to tell if the girl had actually said 'stop' or if she had sat up due to the inability of the one boy to achieve penetration.
As for what J. Davis posted the following was in the opinion:
The cultural mores undergirding the notion that the crime of rape was complete upon penetration may be traced to biblical and middle, assyrian laws: ' Under MAL, the rape of a virgin was presumed to be an illegal trespass upon the father's property, with the rapist required to "give the (extra) third in silver to her father as the value of a virgin (and) her ravisher shall marry her (and) not cast her off." The woman was required to marry her rapist without hoe of divorce. If the rapist was married, the virgin still had to marry her rapist; however, the rapist's property, his wife, also was factored into the compensation. The rapist's wife was to be given to the father, "to be ravished ... not to return her to her husband (but) to take her." This approach to rape developed because a virgin was considered a valuable asset, the value residing in men's ability to gain absolute ownership of the totality of her sexual an reproductive functions. Any infringement upon this totality through premarital sexual relations rendered the asset less valuable, and might even turn it into a liability.
Several cases tested the 'law' that if consent is withdrawn after penetration the continuation of the act isn't rape and in essence courts upheld that if consent was given prior to penetration and withdrawn after penetration and the act continued under pressure/force/compulsion it is rape.
Shell .. have you considered tacking that pamphlet up on the local grocery store's corkboard with a note of some sort? Possibly saying, "One of our neighbors used this to terrorize children on Halloween. This is notice, force your twisted religion on me and/or mine, and I dust off my cauldron and start a fire of my own. Don't forget, I know where you live."
Sorry people but this is a misattribution and really totally separate from what Justice Davis might actually think (which given his citation of all the adverse but non controlling authority would probably be to the converse).
The matter before him was an appeal for a criminal conviction and one of the legal question here is whether the trial judge misdirected the jury by not responding correctly to their question as to whether women have the right to withdraw consent after initial penetration. The answer here as to the current statuts of Maryland Law is no because of the controlling case of Battle v State of Maryland.
As he points out, the legal issue here has not been overruled or commented upon negatively and therefore the trial judge is still bound by legal precedent (unfortunately the trial judge thought it was a factual not a legal issue or he could have ruled as a matter of law that Battle is no longer good law)
Justice Davis cannot overrule this case simply because it's not an issue before him. As a judge he can only look at the issues before him and unfortunately the issue here is not the continued validity of the law.
The "explanation" above is the explanation of the basis of the Common Law ruling in Battle .
I hope that this submission could be edited so as to reflect that it's not Justice Davis's view.
From the document it's difficult to tell if the girl had actually said 'stop' or if she had sat up due to the inability of the one boy to achieve penetration.
What do you mean? Her testimony is on pages 5-6. She clearly says that not only did she say stop beforehand (she later said yes on the condition they stop when she said), she said stop during and said she tried to push his knees away.
OK dickwad - here's the rules. If you start fucking a girl, the aim of the game is to last till she's satisfied. If she starts to get sore for any number of reasons - you're too large, you've overdone things, period pain, bottoming out, endodemetriosis, ANYTHING, blacking out, lack of fitness, then stop means stop even if you haven't cum yet.
Women are not property. Stop trying to pretend someone letting you borrow their car to get milk from the shop implies you're allowed to go on a road trip to pick up hookers in Mexico.
Confused?
So were we! You can find all of this, and more, on Fundies Say the Darndest Things!
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