BY ANDY ZIEMINSKI, Capital News Service
ANNAPOLIS (October 3, 2007) - Maryland's highest court was asked Tuesday to determine whether a man can be convicted of raping a woman who agrees to sex but changes her mind after penetration.
Assistant Attorney General Sarah Page Pritzlaff told the Court of Appeals that a lower court was wrong to overturn the rape and sexual offense convictions of Maouloud Baby because he continued to have sex with a woman after she forcibly resisted him.
"When she yelled at him to stop, that it hurt, and physically pushed him away from her, that is the point of non-consent," Pritzlaff said of the December 2003 incident in Montgomery County.
But Assistant Public Defender Michael R. Malloy argued that Baby did not commit rape because the woman initially agreed to have sex. According to Maryland common law, he said, "if consent is withdrawn after penetration, it's not rape."
After the woman told Baby to stop, he continued to push "for about five or ten seconds before he finally got off her," according to court documents submitted by the attorney general's office.
Another man involved in the incident, Michael Eugene Wilson, pleaded guilty to a second-degree rape charge and is scheduled to be sentenced today in Montgomery County.
Wilson was 15 in December 2003 when he raped an 18-year-old Montgomery College student in the backseat of her car while Baby, then 16, waited outside, according to court records. The two men then switched places and Baby asked the woman if she would agree to sex.
"I don't want to rape you," he told her, according to her testimony.
The woman said she agreed as long as he would stop when she told him to, which she soon did.
aby was found guilty of first-degree rape, first-degree sexual assault and two counts of third-degree sexual offense by a Montgomery County Circuit Court jury in December 2004.
The Court of Special Appeals reversed the charges in September 2006, in part because Circuit Judge Louise G. Scrivener failed to tell the jury that a 1980 ruling by the state's high court determined a man was not guilty of rape if his partner gave consent and withdrew it after penetration.
In the courtroom yesterday, judges questioned Malloy and Pritzlaff on issues such as what defined penetration—whether it was an instant or an ongoing act—and how consent could be invalidated.
"The issue is, can consent given initially be withdrawn, and if it is, what is the effect on the crime of rape," Judge Alan M. Wilner said.
Judge Dale R. Cathell said, "For the life of me, I can't find consent in this case."
Members of two advocacy groups, the Maryland Coalition Against Sexual Assault and the Women's Law Center of Maryland, appeared at the hearing and filed "friend of the court" briefs, documents that provide a legal point of view from a party not involved in the case.
"Hopefully their decision comes down to deciding that women have the same rights when there is a penis inside them as when there is not a penis inside them," said Lisae C. Jordan, a lawyer for the Maryland Coalition Against Sexual Assault.
She said that if the court does not make a favorable ruling, "the issue will have to go to the legislature."