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The Attack of the Victimologists

Maryland’s highest court is hearing a case today that simply should not be before it.

Like a lot of important cases, it’s origins are banal and sordid.

The case stems from a Dec. 13, 2003, incident in which the victim, an 18-year-old community college student, drove [Maouloud] Baby, then 16, and his friend, Michael Wilson, then 15, both high school students, to an isolated elementary school parking lot, according to court documents.

Wilson and Baby groped the victim and made sexual advances on her, according to the state’s account of the incident in court filings. At one point, Wilson attempted to force the victim to engage in sex, while Baby held her down. Then Baby left the car and Wilson had intercourse with the woman. Wilson pleaded guilty to second-degree rape and was sentenced to 18 months in prison.

Baby, according to the court record, then said it was his turn and asked the victim, “[So] are you going to let me hit it?” adding,”I don’t want to rape you.”

The victim testified that she agreed to sex “as long as he stops when I tell him to.” As he began, she told him to stop because he was hurting her, but he kept going for five or 10 seconds, she said.

Baby, who was tried as an adult, denied any wrongdoing. He was convicted a year later of first-degree rape and other crimes – some from helping his friend assault the woman first – and sentenced to 15 years in prison, with all but five suspended.

Caddish, to be sure, but rape? And the story has another twist, Baby was convicted even though the judge knew, or should have known, that his actions were not rape under Maryland law.

At yesterday’s hearing, [Assistant Public Defender Michael R.] Malloy argued that the instructions to the jury were misleading and a violation of law because the judge failed to mention a 1980 Court of Appeals opinion that said that rape doesn’t occur if consent is withdrawn after penetration.

During its deliberations, the jury had asked Judge Louise G. Scrivener whether sex that begins consensually but continues after the woman tells the man to stop constitutes rape.

The judge replied that was “a question that you as a jury must decide.”

“A defendant cannot get a fair trial if the jury doesn’t know what the law is,” said Malloy before the high court yesterday.

Malloy also argued that the lower court should not have accepted the testimony of the state’s witness, a nurse presented as an expert in “rape trauma syndrome.”

In its reversal, the Court of Special Appeals wrote that the 1980 opinion remained the last word on the subject because neither the top court nor the legislature has since addressed the subject.

But yesterday, Pritzlaff argued that the judges should overrule the 1980 opinion because it “was wrong in spouting some of that old common law.” The “archaic stereotypes of women and rape upon which common law rape is apparently premised are obsolete,” the state wrote in its appeal.

Even if the court decides to overrule the opinion it is pretty difficult to see how that makes Mr. Baby vulnerable to prosecution. It’s that whole ex post facto thing. It is difficult to draw any conclusion from this case other than Mr. Baby’s conviction was the direct result of malfeasance or misfeasance on the part of the trial judge.

Far from protecting women, this kind of mindless, kneejerk advocacy demeans and infantilizes women. The young woman in question willingly, according to the trial record, climbed into the backseat of her car and consented to being groped by two boys. She had sex with both of them and clearly consensual sex with at least one. An willfully obtuse trial judge refused to answer a very specific question asked by the jury:

“IF A FEMALE CONSENTS TO SEX INITIALLY AND, DURING THE COURSE OF THE SEX ACT TO WHICH SHE CONSENTED, FOR WHATEVER REASON, SHE CHANGES HER MIND AND THE . . . MAN CONTINUES UNTIL CLIMAX, DOES THE RESULT CONSTITUTE RAPE?”

And now in the name of protecting women, groups purporting to be victim’s advocates are attempting to victimize Mr. Baby.

Go figure.






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