Stan said this really oughta be frontpaged rather than languishing way down on the SF thread. I agreed. Here goes…
This ruling takes neoliberal contract theory to its logical conclusion:
An appellate court said Marylandâ€™s rape law is clear â€” no doesnâ€™t mean no when it follows a yes and intercourse has begun.
A three-judge panel of the Court of Special Appeals Monday threw out a rape conviction saying that a trial judge in Montgomery County erred when he refused to answer the juryâ€™s question on that very point.
The appeals court said that when the jury asked the trial judge if a woman could withdraw her consent after the start of sex, the jury should have been told she could not. The ruling said the law is not ambiguous and is a tenet of common-law.
notice that in this ruling the start of sex means the start of fucking (see the Skull-Fuck thread for a startlingly complete exegesis of a familiar anglosaxon expletive) — i.e. the start of what is sex for dominant males — as pointed out on the other thread, it is not by any means guaranteed to be “sex” for the fuckee.
I suggest that this ruling, with its contractual overtones, reflects the ubiquity of prostitution in the legal and cultural understanding of heterosexual relations. the woman has â€œagreed toâ€ a discrete contractual unit of sex â€” â€œthe fuckâ€, and cannot renege on that agreement w/o being in breach of contract. the man “has a right” to collect under the terms of that contract. and unitised sex — specific sequences of physical activity taxonomised, unitised, standardised — sure looks like a commercial paradigm, the reductionist separation of a continuous analog interaction between persons into a reified Series of Things, units to which price tags can be attached. if there were not such a thing as “a fuck,” “a blow job,” “a hand job,” “a DP” — then how could johns purchase one? [the difference between "I'm having dinner at a friend's house" -- an analog, interactive, continuous process in community and communion -- and "I bought a Happy Meal" -- a packaged, unitised, price tagged product of standard content.]
in other words, the law in this instance sems to regard all sex as a business proposition. once a woman has â€œsigned the contractâ€ she is no more allowed to change her mind than she would be if she signed a deed of trust, a travellerâ€™s cheque, or an affidavit. the man is then seen as entitled to the sex act — the sex “unit” or commodity — agreed upon, and consent cannot be withdrawn once it has started. allowing it to start is equivalent to a binding signature: when the woman permits her bodily space to be invaded by the penis, her sovereignty is in abeyance until the man has “finished” (consumed the atomistic sex-unit to which he is entitled, or for which he has paid).
it would be interesting to clarify this ruling with questions about what â€œintercourseâ€ means in this context. if, for example, intromission has not yet occurred, does the law permit the female partner to change her mind? the implication is that it does. what if the penetration is not â€œnaturalâ€, i.e. is oral or anal? what if she agreed only to vaginal penetration, but the man forcibly inflicted a different mode (â€round the worldâ€) â€” would the court then admit her right to refuse, since then the man would be in breach of contract? or by agreeing to any compromise of her bodily sovereignty has she — in the eyes of the law — lost her right to it in toto?
and does anyone â€” puh-leeeze â€” imagine that a man who had voluntarily offered sexual pleasuring to a female partner could ever be found in breach of any legal convention — or in forfeiture of the protection of the laws against assault — if, say, he became bored or tired or had a coughing fit in the midst of cunnilingus and wanted to stop? would a woman who somehow forced him to continue [and how on earth could she do that, but anyway, let us imagine that somehow in some theoretical universe she could] be considered a reasonable person exercising a legitimate right?
of course, a woman would probably have to use a weapon and the threat of GBH or homicide to do so, which would transfer the case into the realm of “uttering threats” and ADW; whereas an average man is pre-equipped vis-a-vis the average woman with superior size, reach, muscle/mass ratio, weight, and training/predisposition to violence. all of which is considered normal and correct by the culture, and hence under the law, and his advantage or edge in force majeure is not sufficient to transfer the coercion (the rape) into this clearly criminal category.
remind us once again how “all persons are equal under the law” in Western Liberal Democracy…