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Post-penetration Rape COERCION OR FREELY GIVEN CONSENT?

Susan Ehrlich

Introduction An important aspect of rape law reform in the United States and Canada over the last number of decades has been the requirement that consent be “voluntary” and “freely given” (Schulhofer 1998; Caringella 2009). That is, many rape statutes in the United States and Canada set the boundary between legal sex on the one hand, and rape or sexual assault on the other hand, by defining consent either as agreement to sex that is freely or willingly given (what Schulhofer 1998 and Caringella 2009 call “affirmative consent” statutes) or by specifying a series of conditions, including submitting to sex by reason of force, fear, or threats, under which the law will deem an absence of consent. These types of statutes, then, go some way in recognizing that women can submit or acquiesce to sex because of fear, physical intimidation and/or the threat of violence and that “agreement” which occurs under these circumstances does not constitute consent. In other words, sex that is coerced or forced in these ways is not considered to be consensual sex, according to these statutes, and can be subject to charges of sexual assault or rape. The case that forms the focus of this chapter took place in Maryland, a state whose rape statute has undergone reform in the ways described above: it requires a finding that consent be uncoerced in order to count as consent under the law.

Portions of this chapter are based on some of my previous work (Ehrlich 2012, 2013). Portions are also based on a paper given at the 2011 American Anthropological Association Meeting on a panel titled “Bodies of Law: Regrounding Reason and Mind in the Interactionally-Situated Legal Subject” organized by Robin Conley and Hadi Nicholas Deeb. I thank Diana Eades and Janet Ainsworth for very useful comments on a previous version of this chapter. All remaining errors are, of course, my own.

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Free and Voluntary Consent

As part of a widespread, legislatively ambitious, rape law reform movement from the 1970s through the 1990s, the statutory requirement that consent be voluntarily and freely given, like other reform measures of this period, has been difficult to implement in practice. Caringella (2009: 97–98) comments that “discretionary decision making is what determines implementation of any reform provision” and that “the research on [rape law] reform has shown that old-fashioned attitudes about females lying about rape, asking for rape, and so on influence discretionary decision making to undermine reform goals.” Tiersma (2007: 93) makes a similar point in relation to the notion of consent specifically, arguing that juries and judges must often draw inferences in determining whether a woman has consented to sex or not and these inferences may be based “on questionable or offensive (some would say: patriarchal) assumptions.” In this chapter, like Caringella and Tiersma, I am interested in the ideological forces that inform discretionary decision making in legal cases involving sexual assault and rape and that often undermine the goals of rape law reform. However, here I focus less on gendered ideologies (i.e., Caringella’s “old-fashioned attitudes about females lying about rape, asking for rape, and so on” and Tiersma’s “offensive [some would say: patriarchal] assumptions”) and more on linguistic ideologies that have been shown to influence interpretation in the legal system. I do this by examining a particular type of rape case that has appeared relatively recently in courts in the United States—what has been termed a post-penetration rape case. More specifically, I argue, on the basis of one particular case, Maouloud Baby v. the State of Maryland, that its framing as a post-penetration rape case was predicated on an interpretation of an instance of coerced sex as consensual sex. That is, even though the judge in this case defined consent as “actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force” (Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland 2005), I attempt to show how a specific linguistic ideology, in combination with constraints imposed by textual hierarchies in the legal system (Mertz 2007), were responsible for transforming the meaning of this case: submission to coerced sex was reinterpreted by at least some of the jurors as consent and the legal question then became whether continued sexual activity following withdrawal of this consent after penetration could legally constitute rape. In this case, then, what began as an investigation of whether consent ever existed in the first place evolved into one in which initial consent was assumed by at least some of the jurors, and the question at issue for the courts was the legal status of post-penetration rape.

Post-penetration Rape So, what is post-penetration rape? The first post-penetration rape case was heard in a United States court in the late 1970s, and since that time


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Post-penetration Rape

post-penetration rape cases have increasingly been heard in US courts. Post-penetration rape is defined as a situation in which both parties initially consent to sexual intercourse, but at some time during the act of intercourse, one party, typically the woman, withdraws her consent; after this withdrawal of consent, the other party, typically the man, forces the woman to continue intercourse against her will (Davis 2005: 732–733). The question that has arisen in these cases is whether a rape can legally occur if a victim initially consents to intercourse but then withdraws her consent “post-penetration.” The answer to this question has been different in different jurisdictions and different courts. Some courts have found post-penetration rape to be a legal impossibility—that is, if a woman consents to sexual intercourse, that initial consent prevents the sexual act from ever legally becoming a rape (e.g., State v. Way, North Carolina, 1979). Other courts have held that a withdrawal of consent post-penetration negates any earlier consent and thereby subjects the defendant to rape charges if he continues what has become nonconsensual sexual intercourse (e.g., In re John Z, California, 2003). The case that I analyze in this chapter, Maouloud Baby v. the State of Maryland, has a complex procedural history revolving around the issue I have just described. The accused, Maouloud Baby, was convicted of first degree rape and some other sexual offenses in December 2004 and was sentenced to 15 years in jail.1 Baby appealed this decision and, upon appeal, the Maryland Court of Special Appeals (the second highest court in Maryland) reversed Baby’s convictions in September 2006, arguing that the trial judge erred in failing to give instructions to the jury consistent with a 1980 higher court case, Battle v. Maryland, which determined that if a woman “consents [to sexual intercourse] prior to penetration and withdraws the consent following penetration, there is no rape” (Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland 2005). In other words, the Court of Special Appeals believed that, as a lower appellate court, it was bound by the Maryland Court of Appeals’ Battle decision—that post-penetration rape was a legal impossibility—and ordered a new trial to be conducted in light of this decision. In April 2008, after Baby and the state cross-appealed to the Maryland Court of Appeals (the highest court in Maryland), the Court of Appeals also determined that the trial judge erred in not responding to the jury’s questions about the legal possibility of post-penetration rape. For this reason, like the Court of Special Appeals, it reversed Baby’s convictions and ordered a new trial.2 In contrast to the Court of Special Appeals, however, the Court of Appeals concluded that the crime of first degree rape in Maryland does include post-penetration rape: “the crime of first degree rape includes post-penetration vaginal intercourse … without the consent of the victim, even if the victim consented to the initial penetration” (State of Maryland v. Maouloud Baby, Court of Appeals of Maryland 2007). That is, while the Court of Appeals also reversed Baby’s convictions and ordered a new trial,


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it determined that the Court of Special Appeals, in ruling post-penetration rape a legal impossibility, had invoked a part of the Battle decision that was not binding (i.e., was not the “holding” of the case). In doing so, it clarified the Maryland rape statute, holding that a woman may say “no” at any time during intercourse and a man can be subject to a conviction for rape if he does not stop. Although the Baby case, as I have just described, came to be understood in its appellate decisions as a case about the legal status of post-penetration rape, the issue at trial was not framed in this way by either the prosecution or by the defense. Rather, the prosecution in the case argued that the complainant never consented to the sexual acts initiated by Baby (or to the sexual acts initiated by Baby’s friend, Michael Wilson), while the defense argued that she did consent to these acts. Crucially, as the next section demonstrates, neither the prosecution nor the defense invoked the categories of pre- versus post-penetration consent or withdrawal of consent.

The Trial “Facts” as Represented by the Prosecution and the Defense Unlike many trials for serious crimes in the (adversarial) common law system, there were a number of “facts” in the Baby trial that the prosecution and the defense agreed upon. The complainant, J.L., and the accused, Baby, met through mutual friends the night of the events in question—December 13, 2003.3 After participating in a number of activities that involved a group of people, including the complainant, the accused, and their mutual friends, J.L. said she would drive Baby and his friend, Michael Wilson, to a residential neighborhood where J.L. parked her car and agreed to sit in the back seat of the car with the two young men. It was at this point in the testimonies of J.L. and Baby that their stories began to diverge, although it should be noted that the Court of Special Appeals remarked in its opinion that the accused’s testimony “was surprisingly consistent” with the complainant’s (Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland 2005). The following are excerpts from both the prosecution’s and the defense’s opening statements regarding the events that transpired once J.L. agreed to sit in the back seat of the car with Baby and Wilson.4 Excerpt 1 (see appendix for transcription conventions) 1 She climbed in thuh back seat, (.) She took with her a: an accessory 2 magazine a car accessory magazine, she was gonna show thuh two guys 3 .hh she got into thuh back seat between them (.) and as soo:n as she


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4 got in thuh back seat (.) they both started grabbing her. (.) 5 Maouloud Baby grabbed her shirt and said “why don’t you flash me.” 6 (.) Michael Wilson grabbed her ha:nd and tried to put it down his 7 pants. (.) She told them to stop. (

) They didn’t stop. (

) She said

8 “I have to go.” (.) They didn’t let her go. (.) Maouloud Baby and 9 Michael Wilson refused to stop, (.) They flipped her over onto her 10 stomach, (0.2) J.L.’s face was in Michael Wilson’s lap, (.) he 11 asked her and forgive me for thuh language these are his words not 12 mine. He asked her to “lick it” so he could get ha:rd. (.) A:nd 13 meanwhile Maouloud Baby (.) was trying to pull her pants down, (.) 14 She tried to pull her pants up but her arms were pinned to her 15 si:de, (.) This is uh-thuh back seat of a two-door car:, there’s 16 three people in thuh back seat, .h and J.L. was unable to move her 17 arms. .hh J.L. kept saying no. (.) J.L. kept saying stop. (.) but 18 Maouloud Baby and Michael Wilson persisted.(.) Michael Wilson and 19 Maouloud Baby both put their fingers in J.L.’s vagina, (.) 20 She told them to hurt-th-that it hurt she told them to stop, (.) 21 They did not stop, (.) At one point Michael Wilson (.) was trying to 22 put his penis in her vagina and he put it in his-her rectum and she 23 yelled (.) and said it hurt (.) and they laughed. (.) At one point, 24 (.) Maouloud Baby r:olled up thuh window. (.) Thuh window was down a 25 little bit.=He rolled up thuh window to keep anyone from hearing 26 J.L. scream. (.) J.L. kept telling them to stop. (0.4) They didn’t 27 stop. (.).h Now as you can imagine it was crowded in that back seat 28 with Maouloud Baby, (.) he’s six feet tall and Michael Wilson, and 29 J.L. Michael Wilson a:sked Maouloud Baby to get outta 30 thuh car. He didn’t do that right away (.) but ultimately he did get 31 outta thuh car:, (.) stood by:, and while he was outta thuh car 32 while M-Maouloud Baby was outta thuh car Michael Wilson (.) finished 33 raping J.L., vaginally,=he climaxed, (.) J.L. saw that Michael 36 Wilson was wearing a condom and she remembered that it was white in 37 color. (.) .h And after Michael Wilson was finished he told (.) 38 Maouloud Baby, that it was his turn ( ) and they traded places. (.) 39 Maouloud Baby got into thuh car Michael Wilson got outta thuh car 40 (.) and Michael Wilson wa:tched (.) while Maouloud Baby (.) himself 41 (.) raped () J.L. (.) A:nd you’ll hear that when Maouloud Baby got


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42 back in thuh car J.L. (.) was very tired and was in shock, .hh and 43 he said “are you gonna let me have my turn”. (.) and she said “Will 44 you stop when I say stop” (.) and he started to put his penis in 45 her: and she said “stop it hurts” (.) and you’ll hear that Maouloud 46 Baby did not stop (.) and that he proceeded to put his penis in 47 J.L.’s vagina. (.) Maouloud Baby was also wearing a condom 48 (.) but J.L. did not think that he: had had a climax. (.) A:nd (.) 49 when Maouloud was finished,=Maouloud Baby was finished=Michael 50 Wilson (.) with Maouloud Baby, a:nd J.L. in thuh back 51 seat=Michael Wilson got into thuh driver’s seat (.) a:nd started 52 thuh car. (.) And when J.L. protested ( ) Maouloud Baby said-he 53 reassured her he said “Don’t worry Michael Wilson he knows how to 54 drive he’s cool.” Excerpt 1 is from the prosecution’s opening statement. What we see in this excerpt is that after enduring much nonconsensual sex from the two young men (i.e., Baby grabbing J.L.’s shirt and trying to get her to show her breasts (line 5); Wilson grabbing J.L.’s hand and trying to put it down his pants (lines 6 and 7); Wilson trying to get J.L. to lick his penis (lines 10 to 12); Baby trying to pull J.L.’s pants down (lines 13); Wilson and Baby putting their fingers in J.L.’s vagina (lines 18 and 19); Wilson putting his penis in J.L.’s rectum (lines 21 and 22); Mike raping J.L. (lines 32 and 33)), J.L. agrees to allow Baby “to take his turn” (when he re-enters the car) as long as he stops when she tells him to stop (lines 42 to 44). And it was this “agreement” that came to be understood as J.L. consenting to sexual intercourse with Baby, once the case became framed as a post-penetration rape case. As noted above, the issue for the appellate courts then became whether this initial “consent” protected the sexual intercourse from legally becoming a rape or not. Excerpt 2 describes the same set of events, but from the perspective of the defense. Excerpt 2 1 She voluntarily goes in thuh ba:ck seat, (.) of thuh sma:ll two door 2 car, (.) and she says to: Miss Winfrey5 that she went in thuh back 3 seat >in thuh middle a thuh night with two guys that were smoking 4 pot< to show them (.) a: magazine. (.) Common sense. (.) An’ I-I 5 don’t wanna be in this courtroom (.) ta:lking about an eighteen year 6 old girl: badly, (.) but I-he-I- (.) sixteen year old boy:. ( ) Gotta


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7 defend ‘im.=I gotta DO this. (.) So don’t ha:te me for saying ba:d 8 things about pe:ople, (.) I don’t know why people do things, (.) but 9 I gotta represent him (.) with a thousand percent of my energy. (.) 10 ‘cause he’s of a GANG RAPE. () of A:NY 11 of those six charges. (.) She consented with Him. ( ) She consented 12 with HIm. (.) Six times she consented with HIm. (.) Wilson,=I don’t 13 know he’s not he:re. (.) Okay:? (.) conSENT, conSENT, conSENT, 14 conSENT, conSENT, conSENT. Six counts. (.) All consent. (.) Wilson I 15 dunno. (.) E’s got his o:wn penis. (.) And during thuh ti:me that 16 Wilson was with her he was outside uh THUH CAr::. (.) HE’s OUTSIde 17 uh thuh car then he gets ba:ck in. (.) An’ she didn’t say no: tuh 18 him, (.) When he gets back in thuh car >she doesn’t say no=eh’s a 19 sixteen year old kid.< (.) lookin’ tuh pa:rty. (.) What do sixteen 20 year old boys wanna do,=They wanna have SE:X. (.) That’s what he 21 wanted to ha:ve. (.) He didn’t r:ape anybody, (.) An’ when he gets 22 ba:ck in thuh car after Wilson. does what he doe:s with his o:wn 23 penis, (.) He gets in thuh car with his penis. (.) An’ she doesn’t 24 tell him no: (.) She consents to: him. (.) doing whatever he did. 25 His semen’s not- (.) You’re not gonna find his semen in the: 26 evidence, (.) He: unfortunately:=I hate to use this language-I-I 27 hate using this language. (.) He couldn’t penetrate her. (.) He had 28 difficulty-he couldn’t penetrate her. (.) He tri:ed >but he 29 couldn’t,< (.) Wanted to: yeah(s)=Sixteen year old- ( ) red blooded 30 boy:, (.) That’s what sixteen year old boys wanna do:, (.) He 32 couldn’t penetrate her.=his semen is no:t in the: evidence, (.) 33 Wilson’s se:men’s in the: evidence, (.) His se:men’s not in the: 34 evidence, (.) Did you hear:=no weapon:? (.) Nobody had a gun: or a 35 knife,>=I didn’t hear that.< NO weapon. (.) No weapon. (.) No gun no 36 knife. (.) No weapon. (.) No threats=>he didn’t threaten her-yes< Indicates talk that is noticeably faster than surrounding talk Indicates talk that is noticeably slower than surrounding talk hh The letter “h” indicates audible aspirations (the more hs, the longer the breath) .hh A period preceding the letter “h” indicates audible inhalations (the more hs, the longer the breath) y(h)es h within parentheses within a word indicates “laugh-like” sound £yes£ A pound sign indicates smile voice OTHER NOTATIONAL DEVICES

(guess)

Words within single parentheses indicate likely hearing of that word ((coughs)) Information in double parentheses indicate the transcriber’s descriptions of events rather than representations of them ( ) Empty parentheses indicate hearable yet indecipherable talk

Notes 1. The first trial, also in 2004, was declared a mistrial because of a hung jury. 2. According to the state attorney (personal communication), there will not be another trial because the complainant is unwilling to testify once again.


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Free and Voluntary Consent 3. The state requested that the Court of Special Appeals refer to the complainant as J.L., and this is how she is referred to in both appellate decisions. 4. Michael Wilson was also charged with rape and some other sexually related charges, but did not have a trial because he pled guilty to all charges. 5. Miss Winfrey was a lawyer for the prosecution. 6. Once the jurors introduced the possibility of the withdrawal of consent, no competent lawyer could have ignored it in the appellate framing of the case (personal communication, Janet Ainsworth). 7. Lacey was J.L.’s best friend and the person who introduced J.L. to Baby and Wilson. 8. It should be noted that the Maryland Court of Appeals, the highest court in the state of Maryland, represented these events in the same way as the Maryland Special Court of Appeals. That is, when the opinion represented the events following Baby’s re-entry into the car (i.e., J.L.’s so-called consent), it directly quoted J.L.’s trial testimony; when the opinion represented the events preceding Baby’s re-entry (i.e., the series of nonconsensual activities that J.L. reports preceded her agreement to have sex with Baby), it represented her trial testimony indirectly. 9. The extent to which my analysis of this post-penetration rape case applies to post-penetration rape cases more generally is an open question, one difficult to determine without data from the trials themselves. Nonetheless, there are some indications from the descriptions of other cases (descriptions that are based on the cases’ appellate decisions) that the initial “consent” upon which the post-penetration framing is based on may be more accurately characterized as coerced sex, as in the Baby case. See Davis (2005).

Cases Cited Battle v. Maryland, 414 A.2d 1266 (Md. 1980). In re John Z., 60 P.3d, 183, 189–90 (Cal. 2003). Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005. 172 Md. App. 588, 916 A.2d 410; 2007 Md. App. LEXIS 60. State of Maryland v. Maouloud Baby, Court of Appeals of Maryland, 2007. 404 Md.220, 946 A.2d 463; 2008 Md. LEXIS 190. State v. Way, 254 S.E.2d 760, 762 (N.C. 1979).

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Post-penetration Rape Campbell, Jacquelyn, Linda Rose, Joan Kub and Daphne Nedd. 1998. Voices of strength and resistance: A contextual and longitudinal analysis of women’s responses to battering. Journal of Interpersonal Violence 13: 743–762. Caringella, Susan. 2009. Addressing Rape Reform in Law and Practice. New York: Columbia University Press. Collins, James. 1996. Socialization to text: Structure and contradiction in schooled literacy. In Michael Silverstein and Greg Urban (eds.) Natural Histories of Discourse. Chicago: University of Chicago Press. 203–228. Comack, Elizabeth. 1999. Theoretical excursions. In Elizabeth Comack (ed.) Locating Law: Race/Class/Gender Connections. Halifax: Fernwood Publishing. 19–68. Davis, Amanda. 2005. Clarifying the issue of consent: The evolution of post-penetration rape law. Stetson Law Review 34: 729–766. Dobash, R. Emerson and Russell Dobash. 1992. Women, Violence and Social Change. London: Routledge. Eades, Diana. 2008. Courtroom Talk and Neocolonial Control. Berlin: Mouton de Gruyter. Eades, Diana. 2010. Sociolinguistics and the Legal Process. Bristol, U.K.: Multilingual Matters. Ehrlich, Susan. 2001. Representing Rape: Language and Sexual Consent. London: Routledge. Ehrlich, Susan. 2012. Text trajectories, legal discourse and gendered inequalities. Applied Linguistics Review 3: 47–73. Ehrlich, Susan. 2013. Post-penetration rape and the decontextualization of witness testimony. In Chris Heffer, Frances Rock and John Conley (eds.) Legal-Lay Communication: Textual Travels in the Legal System. Oxford: Oxford University Press. 189–205. Gewirtz, Paul. 1996. Narrative and rhetoric in the law. In Peter Brooks and Paul Gewirtz (eds.) Law’s Stories. New Haven, Connecticut: Yale University Press. 2–22. Haviland, John. 2003. Ideologies of language: Some reflections of language and U.S. law. American Anthropologist 105: 764–774. Jefferson, Gail. 2004. Glossary of transcript symbols with an introduction. In Gene Lerner (ed.) Conversation Analysis: Studies from the First Generation. Amsterdam: John Benjamins. 13–31. Maryns, Katrijn. 2013. Disclosure and (re)performance of gender-based evidence in an interpreter-mediated asylum interview. Journal of Sociolinguistics 17: 661–686. Matoesian, Greg. 2001. Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial. New York: Oxford University Press. Mertz, Elizabeth. 2007. The Language of Law School: Learning to Think Like a Lawyer. Oxford: Oxford University Press. Philips, Susan. 1986. Reported speech as evidence in an American trial. In Deborah Tannen and James Alatis (eds.) Georgetown University Roundtable in Languages and Linguistics 1985: The Interdependence of Theory, Data and Application. Washington, D.C.: Georgetown University Press. 154–170. Rumsey, Alan. 1990. Wording, meaning and linguistic ideology. American Anthropologist 92: 346–361.


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Free and Voluntary Consent Sanday, Peggy. 1996. A Woman Scorned: Acquaintance Rape on Trial. New York: Doubleday. Schieffelin, Bambi, Kathryn Woolard and Paul Kroskrity (eds.). 1998. Language Ideologies: Practice and Theory. Oxford: Oxford University Press. Schulhofer, Stephen. 1998. Unwanted Sex: The Culture of Intimidation and the Failure of Law. Cambridge, Massachusetts: Harvard University Press. Solan, Lawrence and Peter Tiersma. 2005. Speaking of Crime: The Language of Criminal Justice. Chicago: University of Chicago Press. Tiersma, Peter. 2007. The language of consent in rape law. In Janet Cotterill (ed.) The Language of Sexual Crime. Basingstoke, U.K.: Palgrave Macmillan. 83–103. Trinch, Shonna. 2010. Disappearing discourse: Performative texts and identity in legal contexts. Critical Inquiry in Language Studies 7: 207–229. Woodhams, Jessica. 2008. How victims behave during stranger sexual assaults. Unpublished manuscript.


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