If only we could get courts behind Biting Beaver's Rapist Checklist, our court system would be a better place. That "damage is done" bullshit makes me sick. I'm proud to say I'm behind it.

This case is disgusting. It speaks very strongly for the reason that women need to vote more so that their perspective is taken into account when laws are written.

I really enjoy this site, and find it incredibly educational, being a bearer of a Y chromosome. But the last line you include in your post should be examined from another perspective. Because of the power dynamics in our current culture, the sexual power women hold over men is a real and powerful thing. It is the reason why Madison Ave. uses women's bodies to sell us anything and everything. Unfortunatly, we are stuck at a point where that is seemingly the only power women are afforded in this country.

I in no way condone rape, and I do think there is a rape cutlure in America, but the only way to change the situation is to frankly look at the way women use their sexual power over men and the way men use their physical power over women. I would gladly respond to any one on this site that has a difference of opinion.

So according to you, equity, the only power women have is based on sex but women shouldn't use that power?

i'm curious what this has to do with rape. the last comment is pretty clear:

Rape takes away a woman's power to use sex to jerk a man around.

To this man, rape is a way to punish women for what he perceives as women "using sex" against him. To him, rape is an acceptable response to women not fucking him.

So if you want to talk about the way women use sexual power, by all means go for it. But don't do it on a rape thread, because the implication is a little more than fucked up.

Ok - so while a lot of those above comments are pretty vile I'm not so sure this is a completely black and white situation. We're not talking about condoning rape - we're talking about the ramifications of a woman changing her mind after consenting. Or even discussing what constitutes a serious infringement on her rights by being intimidated into not being able to say "no" in the first place.

Proving that kind of thing "beyond a reasonable doubt" can't be easy - especially if you're looking to put away a rapist for a good long time.

I guess you could make the case that if a guy doesn't know a woman well enough to be sure that she's not going to be calling it rape he shouldn't be having sex with her at all.

Still... it seems a little scary to think how powerless men might be when theoretically they could have actually heard the word "ok", but then in fact learn that perhaps they both weren't completely on the same page. Especially when you introduce alcohol and one night stands into the equation (for both of them).

I hope I don't get jumped all over for being an insensitve male wannabe rapist for this post...

Okay, I can't tell if some of the comments here are parody, but let's put it this way: No means no, asshole. Isn't it grand that discussion of rape in this country is immeasurably inferior, intellectually and morally, to a bumper sticker?

Ten, it's actually not as hard as guys want to pretend it is. "No"=don't do it. "Stop"=don't do it. If she's saying "no" and meaning "yes", she'll learn quickly to quit playing games if guys immediately take their hands off the second the word is uttered.

Ten, I think the problem is that too many guys think that it really is that fuzzy, when it just isn't. Any men with a modicum of sensitivity should be able to tell when a woman doesn't want something. I say this having dated some real JERKS in my day, and yet even *they* have in fact DECLINED sex BECAUSE they weren't sure that I wanted it.

I'm not talking genius super-sensitive men here. I had a messed-up relationship with a guy who actually said that he didn't view our relationship as legitimate, that it was only about sex, that he didn't even consider us friends (don't ask why I slept with him -- this is the fucked-up stuff chemistry can do to your brain). And yet HE one time refused to have sex with me because he was unsure that I really wanted it -- and he was HIGH at the time.

Look, if a high-as-a-kite, walking-penis asshole can know enough not to have sex with me when he's reading mixed signals, then your average, run-of-the-mill non-rapist can too. I think too many guys try to put themselves in the position of the rapist by *believing* the rapist when he says he "thought" it was consensual. Come on, guys, give yourselves more credit than that! If it was you, you would know. We women may be many things, but we are not THAT hard to read. And if we are, a smart man knows enough to take care of himself in some other manner. It really is as simple as that. No "did he know?" No "what if he didn't hear her?" If you're a decent human being with an IQ of more than 60, you really have nothing to worry about.

Still it seems a little scary to think how powerless men might be when theoretically they could have actually heard the word "ok", but then in fact learn that perhaps they both weren't completely on the same page.

When you think of how many times we hear women say they really didn't want to and the guy had no clue, this indicates to me that sexism and male entitlement have a huge role in men's inability to tell when women don't want it. Men need alot more education so they can understand what women say, verbal or not.

No has always meant no as far as I'm concerned. Rape is an act of physical violence that represents itself in a sexual manner. The only way to adress the issue and find solutions is to look at both contexts. I am not condoning the act of any rapist in general and this one in specific.

I think we need to move past the bumper sticker as well, TenDimensions.

Law Fairy, you have to wonder sometimes if the jerks who decline sex b/c they're not sure you really want it are only doing to so avoid being charged with a crime. Sometimes the threat that a woman might actually take rape to the cops and to court is the only deterrent. Looking back, do you think this may have been the case with at least one of these men?

Myself, I do not engage in sex unless all lights are green. Sex is a natural part of life, especially for people. The only deviant human sexual behavior is to have none. I see no reason for any part of it to be covert. Mixed signals be damned. Either one wants to have sex or one does not. All questions of how, when, where, and how long come second. Not only is this the necessary prerequisite for awareness and prevention of rape, but it is the standard for open communication between human beings.

The awfulness of the court decision leaves me gasping for air. The property concepts are bad enough, after the initial penetration the harm is already done indeed. Not from the point of view of the victim it is not. This is not an Auction for Virgins or something like that. We are talking about human beings, persons who do not give up their rights to control their bodies, their lives. That recognition is one thing that is lacking from the "legal decision". I doubt that such a decision could be made lawfully in California. When I have had to make charging decisions I have always sought to be mindful that the person who suffered the violence retains the full power to change her mind. Even in the midst of the act, the aggressor retains the ability to continue or to desist. It is true however the D.A.'s office often declined to pursue these case when, due to "mixed signals" or consent withdrawn, the perpetrator exploited the situation to his benefit. In such instances the D.A. often cited the unlikihood that a jury would convict on these facts. I was always very disappointed to hear this, though I know my feelings were dwarfed by the victim. As for Ten, he misses the point entirely. His take does much to do injury to women and those men who understand the true nature of rape and the cost to us all.

Well said, Bob.

efbg, I have no idea what you mean by "both contexts." Rape occurs in one context: the one wherein men force women to have sex against their will.

Also, what is with this mixed-signal nonsense? Here's a thought for men everywhere, which in my experience thoughtful men who don't want to rape women already know: if you're getting mixed signals, stop and ask for clarification. Isn't that better than crossing your fingers and thinking "Gee, I hope I'm reading her right and she really wants sex!" Unless, of course, the issue isn't really that you don't want to rape a woman and so traumatize her, but instead that you just want to weasel your way out of jail time.

It's not that hard to tell if someone really wants sex. And if it is too difficult for you, ask. If you can't be bothered to do that, you're really not mature enough to be having sex in the first place.

EG, exactly. efbg is obfuscating in order to try make some fucked point about women being partially responsible for rape because they use sexual power against men.

it is the standard for open communication between human beings

Reiterating what EG said, people who can't communicate or understand others shouldn't have sex in the first place.

I cannot believe that decision, or the opinion of Battle that the "damage is done" when the woman is penetrated...

This happened to me and I can tell you that the damage is done when someone asks their partner to stop and the partner doesn't. That is the point at which the "victim" knows that their partner has ZERO respect for them. And the point at which one person feels violated isn't directly correlated with the type of physical activities going on.

TenDimensions said
"Or even discussing what constitutes a serious infringement on her rights by being intimidated into not being able to say "no" in the first place."

I seriously think there needs to be a greater discussion amongst young women about intimidation and emotional abuse in relationships. Educating young women about crappy relationships and ways to identify them, avoid them, and get the hell out of them would do a lot to lower the current rate of 1 out every 4 women having to join me in recovery from sexual violence.

another rate we need to lower is that 1 out of 3 men would commit something legally considered rape if they thought they could get away with it... cases like this are going to help turn a lot more of those 1/3 into the 1/10th that actually commit rapes.

* This is my first post on feministing, so by the time it appears, others may have made these points.

EG's comment may have been an oversight ("Rape occurs in one context: the one wherein men force women to have sex against their will.") but it neglects to recognize that sexual assault can be perpetrated by and against people regardless of gender- the standard "rape script" may be male against female, but certainly females can perpetrate against females, men against men, etc. (Not that I would expect the Maryland court to recognize that based on its reasoning in this opinion.)

On a separate note, regardless of the horror that a contemporary court can so coldly embrace common law notions of rape which were essentially based on ideas of women as property, and virginity as property value, BUT the response of society should not be to impose punishment ex post facto- it should be to reform the statutes. What happened here is horrible and shocking, but in the United States, criminal defendants have the right to be tried on current law and found guilty beyond a reasonable doubt before the state punishes. This is troubling reminder to all of us that there remains a great deal of work to be done in our legislatures to define sexual assault.

Another thing- regarding the withdrawal of consent. It is troubling to me here that the young woman in the case actually articulated limits to her consent, which the court glosses over in its analysis. Even the "penetration" definition is disturbing- if someone consents to vaginal penetration, does the perp then have carte blanche for anal and oral penetration?

Similarly, does consent to any kind of penetration also imply consent for a number of other sexual/sexualized acts- for bondage? Or to rip off the condom after the first penetration and continue unprotected as long as he wants? Or to invite another partner to assault her? Or for sado-masochism? Or to continue the unwanted penetration for hours or days? I would argue that each of these is an act separate from the initial act consented to, but I don't know that this court would agree- that's a whole 'nother can of worms.

I blogged about this issue here, and got several comments from dudes who seem to think that this is a great decision, because otherwise, women would be crying rape left and right.... I never did get a response to the question I asked the most vocal commenter, "You seem to think it's okay to keep going for a few seconds following withdrawal of consent... but how long is "ok" then? A minute? Ten minutes? An hour?" but I never got an answer...

Also, what is with this mixed-signal nonsense? Here's a thought for men everywhere

Whoa there, EG, if you're talking about my comment. My point was not that once a woman consents that she has consented until the man is done. She can be consenting in one nanosecond and non consenting the next. What I meant to say is there is no such thing as a "mixed signal" in the first place. Only yes, no, or undecided/ambiguous. The decision is digital. There's no partially yes, or partially no. If a woman decides suddenly in the middle of sex that she does not want it, fine. Instant switch from yes to no.

It's not that hard to tell if someone really wants sex. And if it is too difficult for you, ask. If you can't be bothered to do that, you're really not mature enough to be having sex in the first place.

Is exactly my point. But I'll take it a step further. If you can't literally say "Do you want to have sex?" and refrain from using a euphemism, you're not mature enough to be having sex.

oh, crap.... it seems to have posted my comment twice for some reason... Sorry!!

"Law Fairy, you have to wonder sometimes if the jerks who decline sex b/c they're not sure you really want it are only doing to so avoid being charged with a crime. Sometimes the threat that a woman might actually take rape to the cops and to court is the only deterrent. Looking back, do you think this may have been the case with at least one of these men?"

Absolutely, Aerik -- but I'd rather have an asshole decline sex because he's worried about committing a crime, than an asshole arrogant enough to think he'd never be accused of anything. I think that was kind of my point... if you genuinely are just Not Able to read women, then you're gonna have to have a lot less sex. I think it's fair to say to men, look, if you're not *sure* she wants it, then don't do it. *Best* sensitive and intelligent, but at least, better safe than sorry, right?

I seriously think there needs to be a greater discussion amongst young women about intimidation and emotional abuse in relationships.

another rate we need to lower is that 1 out of 3 men would commit something legally considered rape if they thought they could

Feminism solves both dilemmas. This discussion reminds me of women who suddenly leave their husbands after decades of marriage saying they were unhappy whose husbands said it was out of the blue. Not only do women need feminism to know when they are unhappy, men need it to know when women are unhappy.

Of course neanderthals think women should stay in unhappy marriages and enjoy rape.

donna darko, you may be unfairly maligining Neanderthals: it's not like there are any of them around to explain the complexities of their social structure to us.

We do know that certain Christianist Fundamentalists think that women should stay in unhappy marriages and enjoy rape. Unfortunately, evidence suggests that these wankers are indeed of the sames species as you and I.

Aerik, sorry I wasn't clear--my mixed messages comment was actually in response to Ten's post, not yours.

isfa, my comment was not an oversight. The overwhelming percentage of rapes are committed by men on women. This entire conversation has been about the power dynamics between men and women.

donna darko, you may be unfairly maligning Neanderthals

heh heh!

I'm going to engage in a little shameless self promotion This is a column I wrote about the case for my school paper. It's part of a regular column I write about feminist issues. Read it, and while you're there, search "Linda Whiteside;" she'll make you're blood boil.

I'm going to engage in a little shameless self promotion This is a column I wrote about the case for my school paper. It's part of a regular column I write about feminist issues. Read it, and while you're there, search "Linda Whiteside;" she'll make you're blood boil.

whoops...sorry for the double post.

Melissa- great article.
EG- I see your point. Let me try to explain where I'm coming from. From my perspective, there are a lot of issues here. You are absolutely right that a central issue is the use of rape to subordinate women. But I think there are other major issues, too, one of which is that the Maryland court is upholding a law based on the standard "rape script." What I mean by "rape script" is that when most people speak of rape, it often means a stranger rape of a woman by a man with the use of violent force which the woman resisted with violent force. The rape script itself is a problem, not just because it excludes sexual assaults that don't conform to that gender configuration (male against female), but also because it doesn't take into account acquaintance rape, the role of culture (where many women have been socialized to not resist, or see it as being a way to survive the assault), or degrees of consent. I just think it's important not to marginalize other experiences of sexual assault because in doing so, we perpetuate the stereotypes about what rape is, and that reinforces the rape script. And it is the rape script that prevents many of us from reporting sexual assault, too- it contributes to the way survivors like myself blame ourselves- because if it didn't follow the script, then it wasn't a "REAL" rape, then maybe it was our fault, then no one would believe us, etc.

This issue seems so simple to me. If I were the judge establishing the common law, I would determine that, because one's body is one's private property, one has the right to evict any foreign objects from his or her body he or she may choose.

If, upon the subject demanding that a foreign object be removed from his or her orifices, the foreign object is not removed in a reasonable amount of time (say ten second at most), and the subject is not permitted to remove the foreign object him- or herself, then rape is being committed against the subject. If, upon the subject demanding that a foreign object be removed from any contact with his or her body, the foreign object is not removed from contact in a reasonable amount of time, and the subject is not permitted to remove the foreign object from any contact with his or her body him- or herself, then assault is being committed against the subject; and if the foreign object is sexual in nature, or the contact is sexual in nature, then rape is being committed against the subject.

This seems logical to me.

Elasticity could be applied to the "reasonable time" limit only in rare circumstances, for example, if both persons have fallen in a well and it is impossible for person A to remove total contact with the body of person B until after a rescue. But even in this circumstance, I don't forsee it being likely that a person would be unable to evacuate another person's orifices.

"Sexual in nature" may seem a bit ambiguous, but I'd have to leave it up to future courts to decide whether in incident in question in their case constitutes being "sexual in nature" based upon the facts of their case. For example, if person A is poking person B in the arm with a stick against person B's will, that would be assault but not rape. If person A is, instead, rubbing a sexual organ against person B against person B's will, then this probably will constitute rape in future decisions.

Interaction with a spouse certainly could constitute rape, as I define it above. Private property is probably the most important institution available for ensuring liberty for all. Self-ownership is a concept that was very essential to the opponents of slavery, and it's just as practical and essential a concept today.

Respectfully yours,

Alex Peak
Representative At-Large, Libertarian Party of Baltimore, 2006-Present
Membership Chair, College Libertarians of Towson, 2006-Present
President, College Libertarians of Towson, 2004-2006

One thing we should be keeping in mind is that we are fighting to participate in a system designed by men, of men, for men...and we are basically defeating our own purpose by doing so.

I say that women will not be equal until the entire social structure is redone from the ground up, with women in equal control.

Same goes with equality for any other marginalized group, really.