Am I missing something?
Scott Lemieux seems to take great umbrage at this 1980 Maryland Court decision in a rape case:
Frankly, I don't see why it's so off the mark. I might well disagree with the "...further injury was considered to be less consequential" since I can imagine all kinds of further injury that could be very consequential, from pregnancy and AIDs to emotional distress. And, frankly, I see no reason why those types of injuries shouldn't be actionable. But, it does seem to me that you have to rule out the charge of rape when the consent was withdrawn after penetration.
It seems to me to be a bit like breaking and entry. You could hardly charge someone with breaking and entering if the enterer was invited into the house by the resident. You could certainly charge him with murder or theft if those crimes were committed after entering the house.
Maybe I'm missing something.
But, to be sure, it was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male's interest in a woman's sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be "re-flowered," that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape.
Frankly, I don't see why it's so off the mark. I might well disagree with the "...further injury was considered to be less consequential" since I can imagine all kinds of further injury that could be very consequential, from pregnancy and AIDs to emotional distress. And, frankly, I see no reason why those types of injuries shouldn't be actionable. But, it does seem to me that you have to rule out the charge of rape when the consent was withdrawn after penetration.
It seems to me to be a bit like breaking and entry. You could hardly charge someone with breaking and entering if the enterer was invited into the house by the resident. You could certainly charge him with murder or theft if those crimes were committed after entering the house.
Maybe I'm missing something.
0 Comments:
Post a Comment
<< Home