No (Finally) Means No

by: TerranceDC

Fri Apr 18, 2008 at 22:09:16 PM EDT

I'd forgotten about this.

If a woman consents to having sex with a man but then during intercourse says no, and the man continues, is it rape?

n Maryland--as well as in North Carolina--when a woman says yes, she can't take it back once sex has begun--or, at least, she can't call the act rape.

That was the recent ruling by Maryland's Court of Special Appeals in a case that may soon make its way to the state's highest court and that has captured the attention of feminists and legal experts across the country. Advocates for victims' rights insist it's not just a matter of allowing a woman to have a change of heart. If the law doesn't recognize a woman's right to say no during sex, they say, there is no recourse for a woman who begins to feel pain or who learns her partner isn't wearing a condom or has HIV. Those who are wary of these measures say they're not arguing against having a man stop immediately when a woman no longer wants to have sex, but with how to define immediately.

Until I read this.

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.

...Tracy Brown, executive director of the Women's Law Center of Maryland, said that before Wednesday's ruling, it was unclear whether a man refusing requests to stop during sex could be convicted of rape.

Brown said Maryland's decision means the law will match what people already believe -- that a woman's right to decide whether she wants sex does not end once sex begins.

"The decision is consistent with cultural standards," Brown said.

But an Illinois lawyer known for defending men, usually in custody battles, said the "withdrawn consent" standard can make it almost impossible to defend a man in rape proceedings.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."

It's the kind of thing you hear the first time and think, "We needed a court decision to tell us this?"

But then, I find myself wondering, does this apply if the parties in question are the same sex? I mean, guys can be raped.

I know a guy can be overpowered by another guy, not because I've been raped. I have not. But there were a couple of occasions when I couldn't get a guy off me when I wanted to; when (yes) I'd changed my mind about what I wanted to happen; when I said no, but got held down and "dry humped" anyway, until he was satisfied. Nothing could have been construed as rape. Not even so much as a zipper was undone, no one was penetrated, and at best it could be described as "forced frottage". But it felt like a violation.

I haven't read Maryland's rape statute, but my guess it that the gender of the attacker and/or victim doesn't make much of a difference in legally defining rape. So, if a guy says "no" to another guy, my guess is that it still means "no."