Feminism: Still Necessary

The Happy Feminist and Jessica Valenti draw our attention to a remarkable-in-a-bad-way ruling by the Court of Special Appeals of Maryland. The court threw out a rape conviction because the judge failed to instruct the jury that a woman could not legally withdraw consent after penetration. The Court’s ruling was based on dicta in a 1980 decision, which it itself was based on common law definitions of rape. The court describes the principles animating the 1980 decision as follows:

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.

The court’s reasoning is unconvincing; it seems highly unlikely that the statute enacted by Maryland in 1976 was intended to reinscribe common law definitions of rape, and by definition the dicta of a 1980 decision are not binding. But whether the court was straining to uphold common law standards that saw rape as a criminal act not because of injury to the victim but because it represents “damage” to an “asset,” or–more frighteningly–it’s an accurate representation of Maryland law in 2006, it’s certainly disgraceful and chilling either way. Hopefully the Maryland Supreme Court will forcefully overturn this court’s decision, but it’s ridiculous that this could even be an issue at this late date.

[Cross-posted to TAPPED.]