The headline on this article "'No' means nothing once sex has started" is NOT a correct assertion about this ruling.

The opinon of the Maryland court goes to great length to analyze the law of Maryland on this point. It explicates the (appalling) history of rape law in the English common law. It concludes that the law of Maryland is that, once a person consents to sex, the withdrawal of consent during the act does not make the act rape. It then says that this rule: "would not have been a bar to a conviction for common law assault for any continuation of the sexual act against the complainant’s will after the withdrawal of consent."

So, it's still illegal, it's just not rape. We may all agree that it SHOULD be rape to keep having sex with someone who is saying stop, but let's not incorrectly characterize this decision.

Men I have talked to about this subject often site "the point of no return" when arguing a case like Maryland's. My response is, O.K., so once you've said yes, I can get out the chain saw! How would they respond if they discovered their partner wasn't a woman or was into something they found scary? Each step of the way is negotiable!

IANAL so my response is purely a layperson's....but this situation highlights the challenges of applying the law (which tries to be as clear-cut and unambiguous as possible) to a sexual encounter.

Having sex isn't like signing a legal document, where the "moment of commitment" is the single, one-time event of writing your signature.

Having sex is one long interaction between two people -- an ongoing negotiation of what's wanted or permissable, and what's unwanted and not permissable. So oral sex may be a yes, but vaginal may be a no; anal is off limits today but yesterday it was OK, etc.

So in my limited understanding of the Maryland law -- saying yes to sex is like signing a legal document -- from that point on, you're committed to any and all things afterwards?? But that's not how sexual encounters work.

Suppose two people have consensual vaginal sex, and then the man demands oral sex, and the woman says no, and the man forces it on her. By my standards, that incident of oral sex would be rape -- it would be sexual assault. Although the couple had just had consensual vaginal sex, that didn't give the man permission to perform any further sexual act of his choosing (even if it's a second round of vaginal sex).

The issue of changing one's mind in the middle of penetrative intercourse is probably the most difficult situation to evaluate, because you're right in the middle of a consensual action when you change your mind and want things to stop.

IMO somebody who continues to have intercourse with you, after you told them to stop in the middle of things, that person should stop and if they don't, that's wrong -- but I'm not sure if I'd call it rape. To me, it's not the same as someone forcing an act on you that you didn't want in the first place.

The problem is that the law doesn't seem to be well suited to fit these kinds of ambiguous situations. It's he-said-she-said -- her word against his, unless she can show any physical evidence to the contrary -- ie can she show any signs of injury, violence or force that could be evidence that he forced her to do something unwanted after their initial consensual encounter.

http://www.courts.state.md.us/opinions/cosa/2006/225s05.pdf

It is actually *more* horrifying than the headline makes it sound. The court rested its decision on a 1980 Maryland Court of Appeals decision, Battle v. State. The rationale of Battle v. State rests on the ancient view of women as chattles, and that their chastity must be protected to preserve their value. Under this view, once penetration has occurred everything else is legally irrelevant--the crime of "rape" essentially boils down to "the taking of a woman's chastity against her consent."

It is possible that the court was trying to goad the Maryland Court of Appeals into reviewing the case and establishing once and for all that continued sexual conduct post-penetration after a withdrawal of consent *does* constitute rape. Let's hope that's the case--the view of rape described in this case has no place in any modern society.