The contours of consent
Public still can’t accept a woman’s right to say ‘no’ after she has said ‘yes’
What happened next was, like much of teenage sex itself, vague, uncomfortable and ugly. Portions of it were criminal. The whole messy encounter was detailed in a seminal Maryland case that gave a woman the right to say “no,” even after she says “yes.”
Writing for the majority, Judge Lynn Battaglia of the Court of Appeals of Maryland
The Baby trial had what lawyers call “bad facts.” Cases with “good facts” often settle. The “bad facts” in Baby were that the girl “consented” to awkward backseat sex with one of the boys, and then she kind of consented to sex with the second boy, who told her it was “his turn” and that she could only leave when he was done. She testified that she “did not really know” if she had a choice and that “something just clicked off and I just did whatever they said.” The second boy (Maouloud Baby, the defendant) did not immediately stop pushing himself inside her after she said “ow, it hurts, stop.” He stopped eventually. When it was over, she gave Mr. Baby her phone number when asked.
No jury (or prosecutor) wants those facts. Juries want to hear that a rape survivor fought, screamed and immediately called the police. They want her to demand love and respect from every sexual encounter. They do not want to acknowledge that popularity, desire and consent are all murky terrain, especially for adolescents. They do not want to consider that a victim might not protest because she just wants things to be normal and fine. The jury does not want to consider that a girl might want consensual sex but not forced sex, and that she might not know exactly where the line is between the two. Up until the Baby case, it was implied that if a woman said yes to any part of a sexual encounter, she said yes to the whole thing, no matter if the guy’s demeanor changed, or how many other men got involved. Up until Baby, she had no right to change her mind if things got ugly.
The Baby case may have changed Maryland law, but it did not change sex in the American psyche. The public still struggles against a woman’s right to say “no” once she said “yes.” The prosecutors in the recent Rockville High rape case surely know this. Their case was already national political dynamite, with the “immigrant” defendants carrying half a nation’s rage and fear. They also had “bad facts.” Along with allegedly inconsistent statements from the girl on what happened (not unusual in a rape case), there was also the fact that the girl had sent explicit texts to one of the boys. Surveillance video apparently showed her walking of her own free will to the bathroom with one of the boys.
None of this means there was no crime. It just means that the prosecutors decided they could not prove it beyond a reasonable doubt, or that it was not worth subjecting this particular child to the humiliating rigors of a nationally publicized trial.
The evidence is troubling. The girl apparently sent pictures to one boy, who then sent them to his buddy, and then apparently invited the second boy to come help himself to her body. The child may have consented to one boy, but that does not mean that she consented to two. Even if she had, it does not mean that she consented to force, or lost her right to withdraw consent once things got nasty.
This case is not about “elective promiscuity,” or “contemporary high school culture” as one defense lawyer recently told the media. Nor is it about a border wall or a toxic presidency. It is about the fragile contours of female consent. It is about “bad facts” that never seem to get better.
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