Bloodless Coup

i'm sure i'll end up with the same feelings about the maryland decision -- as represented in the article and feministe's post it seems to me a no-brainer -- but i really do get irritated when journalists and bloggers post on decisions without linking, you know, the decision itself. i've seen too many journalists completely miss the point of a decision to rely on their second-hand analyses, which often are rushed and / or lacking the appropriate historical and jurisprudential background. furthermore, the lack of sensitivity to procedural posture, misunderstandings arising from which tend to resemble incorrect assumptions about senators' substantive positions based on cloture votes and the like, often screws up the accuracy of lay analyses.

in any event, i can't imagine, based on the article, that there's any way i end up liking this decision. but i'd still like to read it, and without so much as a caption (even if the victiim's identity is concealed, the case has a name), there's no way i'm can spend the time it would take to find it.

Give me a break. Bloggers comment on all kinds of things from second hand sources, from nuclear tests to the weather. In an ideal world we all have the source documents and we are all attorneys, sure. Or wait, maybe not.

the difference is, a lot of what bloggers comment on is stuff that isn't readily in the public domain. many legal decisions, including virtually all appellate decisions, are available at the court sites. but this is as much a gripe about the newspaper article itself, which omitted the caption, all i would have needed to go find the source material pretty quick.

and also unique to the source is that when a public official is quoted, say, while there's room for poor contextualization and other tools of spin, all of which we see with some frequency, i know first-hand and from extensive experience just how bad lay interpretations of legal opinions are.

anyway, if feministe and the article in question did not misstate the case, i agree with feministe's position. since neither she nor the article provide that case, however, my agreement is hypothetical -- if the case said x, i feel y about it. it's just a credibility thing.

and it's not just an expertise thing; once in a while lithwick plays fast and loose, too.

Not to mention Her Royal Moronity in Wisconsin.

i honestly think that was the most incomprehensible thing i've written here in a long time (from a grammatical point of view, at least). i'd try to fix it, but it's almost beyond fixing.

my point is, if one were confident in one's legal analysis, assuming ready availability, one should post a link to the primary source. if one is relying on a very short summary with insufficient information (either to fully understand the legal arguments or the court's decision) in a secondary periodical for one's legal information . . . well, that sort of thing goeth before a fall.

and i'd really like to see the case.

In this case, the one is me, and I didnt do any legal analysis, so I didn't and don't see any problem with not posting a link. I did link to someone who is a lawyer (in training at NYU), and who based on past posts does use original source material.

okay, so i got off my ass.

the point, really, is a formal one. given the sheer volume of bad legal analysis, and the fact that good legal analysis usually brandishes its sources, i'm suspicious of legal analysis that doesn't go to the trouble to provide readers with the underlying info; if one's reasoning without a strong agenda, there's really no reason not to, and its a courtesy to one's readers.

unlike you, i don't read feministe enough even to know she has legal training, and in any event i'm sure i could list dozens if not hundreds of graduates of every well-regarded law school whom you wouldn't trust to teach a ten-year-old basic civics, as could you.

so i just read through the opinion very fast, and i have a few thoughts.

1. this is a f*&ked up case for everyone involved. to illustrate, whether it was rape was a close enough call that the defendant's testimony, which he readily offered at trial, barely differed at all from the victim's. long before she was threatened in any way, and after the brandishment of condoms and discussions of having sex, she dropped off her friend (who wanted nothing to do with the situation) and personally drove two 16-year-old men to a secluded location. of perhaps greatest relevance, her testimony was that she asked the defendant to stop, as she had indicated she might before letting him begin, and he withdrew without climaxing within about five seconds. his testimony was that he withdrew immediately.

2. the trial court didn't really get a chance to take a whack at the legal question, because it ruled that the jury question was ambiguous, and appeared to be asking the court to decide a question of fact that is properly reposed in the jury. to wit, the trial court could not discern a question regarding the legal points at issue in the jury's request, and so he simply punted and said, in effect, you've been instructed in the elements of rape, now you must decide.

3. the appeals court, an intermediate court bound to uphold the decisions of its court of last resort, unabashedly acknowledged a few things: that the decisional law at issue was old and beholden to archaic commonlaw notions regarding women as property and the crime of rape as inhering in deflowering, after which the crime, if any, diminishes (a proposition the court didn't endorse; it was merely relating the historic record in the absence of recent and germane maryland precedent). it also readily acknowledged that other courts had held that post-penetration withdrawal of consent absolutely creates liability for rape. that said, it found only one maryland case on point, and found it sufficiently on-point that it felt bound to apply it. it also ruled that the jury inquiry wasn't as ambiguous as the trial court had claimed, stated a clear inquiry, and one the trial court was bound to answer according to the one on-point maryland case.

4. i'd not be even slightly surprised if the maryland high court takes this case and clarifies that it never intended such a draconian consequence in its one old related ruling, where the facts did in fact differ and the precise question here at issue was not before them.

now, turning to the newspaper on which feministe relied, it wrote:

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.

this is true, sort of, but the opinion's 20-page analysis dipping all the way back to Coke, five-hundred-year-old commonlaw, and sampling broadly the decisional law of other states, is extraordinary for any intermediate appellate court. i think it clearly signals the court's nascent discomfort with the legal rule it found binding.

i also think this case presents one of those fact patterns that any ethical prosecutor would lose sleep over. the victim hung out for like an hour or more with these guys while they talked sex, intimated sex, talked getting a hotel room, etc. she dropped off her friend when the friend grew uncomfortable, then personally drove two men to a secluded location. she complied in every way all the way up to allowing one of the friends to have sex with her. they both testified that she indicated she might ask him to stop, and when she did, he withdrew very quickly, whether it was "immediately" as he had it or within "about five seconds" as she testified. they had smoked marijuana earlier, and were in the tight confines of an automobile. it was in the beginning of the act, and there was no indication he a) tried to force her at any time or b) tried to finish to climax before withdrawing, two things that would dispositively turn things against him in my book. i'm not saying five seconds is okay as a theoretical matter, but i am saying that this fact pattern -- jury instructions aside -- has reasonable doubt written all over it. the jury's repeated inquiries on the withdrawn consent issue, as well as the fact that the first attempted prosecution resulted in a hung jury, merely underscore that fact.

fire away -- i'm sure i'm in for it now. i do urge you to read the case, though, if you have the time.

and what i should add, to bring this around full circle, is by way of answering feministe, who asks:

[L]et’s pretend that “average person” Partner A doesn’t stop when “average person” Partner B asks him to. Partner A keeps going. Partner B asks him to stop again. He doesn’t. Then Partner B yells at him to stop. He doesn’t. Partner B tries to push him off. He holds Partner B down. Partner B screams for him to stop, cries, struggles to get away. Partner A doesn’t stop until he’s finished.

What does that sound like? Would a reasonable person, with no intent to harm another, act in the way that Partner A did? Should Partner A have legal protection? Is this a standard that we want enshrined in the law?

and my answer is that her scenario is not remotely enshrined in the heavily fact-bound holding in question. there is no such thing as instantaneous action, and feministe's discussion demands instantaneity to hold together as a logical matter. her entirely fair observation that courts impose and apply "reasonable person" standards all the time cuts both ways -- a stoned guy with a stoned partner/victim cramped in a backseat gets asked to stop and, on the most adverse account of the event (i.e., the victim's own testimony, as reproduced in the court's opinion), takes no more than five seconds of no-force hesitation to do as he's told. it could easily have taken someone that long to register the request and follow through, which even on the defendant's account, the defendant did), and if we admit that there's no such thing as instantaneity, we're left drawing that line somewhere. is he allowed one second to hear what she said? two? is he allowed to freeze in place and ask whether he heard her right?

i agree that feministe's hypothetical is abhorrent, and any rule that allows that hypo to happen without punishment is simply repugnant, but that's not what maryland -- or any other court of the last two centuries discussed in its decision -- appears to have held. furthermore, to have not reproduced the facts of the case in even summary form and to have presented a fundamentally different and inflammatory hypo as an implied analogy seems to me a highly questionable rhetorical approach.

(and to bring things back around, that's why i like links to primary sources. cases like this are rarely as simple as a one-sentence restatement of their putative holding, and this case is no different in that regard.)