Rape and Formalism

This opinion by a Maryland appellate court has been making the rounds of the feminist blogosphere. Most of the responsa have expressed outrage at the decision, but sadly few have failed to actually read the case before leaping to very nasty conclusions about the judge who issued it. Of the four posts I linked above, only the last by Happy Feminist actually read the case and responded to its argument.

The brief, take-away point about the case: an appellate court judge in Maryland reversed a rapist's conviction, ostensibly on the grounds that, under Maryland law, once consent to sexual intercourse has been granted it can't be withdrawn. After the victim in this case consented once to sex it didn't matter how forcefully she tried to ger the defendant to stop, anything he did could not legally be considered rape.

Needless to say, this is repugnant. What's interesting is reading the case itself, because I believe the judge has actually done a very clever thing that might not be readily apparent. The ruling is still wrong, but I get the feeling that the judge, feeling himself constrained by certain guiding judicial philosophies, essentially did the best he could under the circumstances.

The procedural posture of the case was a challenge to a jury instruction by the trial judge informing the jury that consent to sexual intercourse could be withdrawn mid-coitus, and that continuing with sex after withdrawal of consent constituted rape. The defense appealed this instruction.

Looking to case law, the appellate court found Maryland's history surprisingly bare when it came to cases on this question. In fact, the only case that directly addressed the issue was Battle v. State, a case decided in 1980, and this question was only discussed in the dicta of that case (Dicta are the speculations and off-the-cuff remarks not strictly relevant to the facts at issue in a given case; dicta in cases are not binding, while the holding is). Nonetheless, Battle was decided by the Maryland Supreme Court, and its decisions are binding on appellate courts.

Judges of a certain persuasion would think little of deciding the question of law presented here de novo, determining what the law should be based on reasoning, social science, law from other jurisdictions, etc. The judge in this case is not a judge of that persuasion. This judge feels that judges ought only to make law when there is absolutely no precedent to work off of. He is, in that sense, a classic formalist jurist. What is important is following the precedents and maintaining fidelity to stare decisis.

However, if you read the case below the surface level, it is plainly apparent that this judge really loathes the decision he is handing down. He devotes several pages to discussion of the reasoning in Battle, which is heavily rooted in ancient Common Law commentators. The Maryland Supreme Court, in Battle, argued that Rape had been a common law crime prior to its incorporation by the state into a statute in 1976. Thus, the court had to look to the Common Law to determine how to define rape.

The court then quoted several 18th and 19th Century legal commentators. These commentators agreed that Rape was a form of property crime; women were properly to be considered chattel, owned by their fathers until passed to their husbands in the marriage ceremony. Rape diminished the value of the woman by deflowering her, making her less valuable in a marriage bargain and thus diminishing her worth to her male owner. Thus, consent was unimportant to whether rape had occured once there was penetration. At that point, the damage had been done and the woman's value could not be restored.

The appellate judge quotes this portion of the battle reasoning at length, throwing in bits about ancient Biblical conceptions of women as property and the role that conception played in the development of rape law. He then moves on to various other state laws, nearly all of which have ruled that consent can be withdrawn mid-coitus. And he wraps up by saying, "But, alas! My hands are tied and I must rule that consent cannot be withdrawn."

My feeling is that this judge felt the law was wrong, but also felt it wasn't his place to change it; the Supreme Court or the legislature had to do it. He therefore ruled according to what he felt to be an unjust law, but wrote an opinion that provides all of the opposition research needed for the Supreme Court to overturn it. He wrote this opinion explicitly so it would be appealed and the law changed throughout Maryland, rather than just in his department. And he did it in a way consistent with his personal judicial philosophy of adherence to precedent.

Of course, this is exactly the sort of case that shows the weakness of formalism as a judicial philosophy. It encourages moral cowardice, as judges choose to avoid making tough decisions by hiding behind precedent. We can only hope, at this point, that the Maryland Supreme Court does not play the same game.

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This page contains a single entry by Zach published on October 31, 2006 4:39 PM.

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