Baby v. State

910 A.2d 477 (2006) 171 Md. App. 329 Maouloud BABY v. STATE of Maryland. No. 225 September Term, 2005. Court of Special Appeals of Maryland. October 30, 2006. ⁴⁷⁹ Michael R. Malloy (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, MD, for Appellee. Panel: DAVIS, KENNEY, CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

DAVIS, Judge. The initial trial of appellant, Maouloud Baby, on charges of first-degree rape and related offenses, held in the Circuit Court for Montgomery County on August 23-27 and 30-31 and September 1, 2004, ended in a mistrial due to a hung jury. At a retrial in the Circuit Court for Montgomery County (Scrivener, J.), held on December 13-17 and 20-21, 2004, he was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense. On February 17, 2005, Baby was sentenced to a term of fifteen years imprisonment, with all but five years suspended and five years probation upon his ⁴⁸⁰ release.

From the convictions and sentences, appellant files this appeal presenting the following three issues for our review: I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse, but withdrew her consent after penetration; II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome." For the reasons set forth, infra, we shall reverse the judgments of conviction and remand for further proceedings. FACTUAL BACKGROUND At trial, the complaining witness, Jewel L., testified that, at the time of the incident at issue, she was an eighteen-year-old student at Montgomery College.

On the night of December 13, 2003, accompanied by her best friend, Lacey, she went to the McDonald's Restaurant located in Montgomery Village. Appellant, Lacey's younger brother and her boyfriend at the time were all friends. When Jewel and Lacey were about to leave, appellant, who was sixteen years old at the time, prevailed upon Jewel to give him and a friend, Mike, a ride in her Chevrolet Cavalier, which she had owned for approximately seven months. Mike and another person identified as an "Hispanic boy" were passengers in the back seat of the car.

When the group arrived at its destination, a community center believed by them to be the site of a party, they discovered there was no party. The Hispanic boy alighted from the vehicle and left the group. During the return trip to McDonald's Restaurant, the complainant complied with appellant's request to park briefly near an apartment complex, thereafter proceeding back to the restaurant. The complainant complied with appellant's second request to stop at another location in a townhouse development near the McDonald's Restaurant, where all of the passengers alighted from Jewel's car and proceeded toward a clearing between two townhouses.

As appellant and Mike smoked marijuana, they discussed the possibility of getting a hotel room, noting that the boys were too young, but the girls could get a room. Upon their arrival at McDonald's, Lacey left the group to join a friend, after which the complainant agreed to drive appellant and Mike to a residential neighborhood where she parked her car. The complainant complied with the request of appellant and Mike to sit between them on the back seat of her car. Mike put her hand down in his pants and asked her "to lick it." Appellant then asked her to expose her breasts; when she did not comply, he fondled her breast with his hand.

After Jewel acquiesced to the boys' insistence that they stay ten more minutes, she found herself on her back with appellant removing her jeans and Mike sitting on her chest, attempting to place his penis in her mouth. After she told them to stop, the pair moved her around so that her body was up in appellant's lap as he held her arms and Mike tried to insert his penis in her, but briefly inserted it into her rectum by mistake. After Mike again tried to insert his penis in the complainant's vagina, appellant inserted his fingers in her vagina. After appellant exited the ⁴⁸¹ car, Mike inserted his fingers, then his penis into her vagina.

Mike then got out of the car and appellant got in. Appellant told Jewel that it was his turn and, according to the complainant, the following transpired: Q. [ASSISTANT STATE'S ATTORNEY]: And what else did he say? A. He, after that we sat there for a couple seconds and he was like so are you going to let me hit it and I didn't really say anything and he was like I don't want to rape you. * * * Q. So when Maouloud said I don't want to rape you, did you respond? A. Yes.

I said that as long as he stops when I tell him to, then — Q. Now, that he could? A. Yes. * * * Q. Did you feel like you had a choice? A. Not really. I don't know.

Something just clicked off and I just did whatever they said. * * * Q. Now when you told [appellant] if I say stop, something like that, you have to stop. What did he do after you spoke those words? A. Well he got on top of me and he tried to put it in and it hurt. So I said stop and that's when he kept pushing it in and I was pushing his knees to get off me.

Q. You were on your back and he was on top of you? A. Yes. Q. Did he stop pushing his penis into your vagina? A. Not right away.

Q. About how long did he continue to put his penis into your vagina? A. About five or so seconds. Q. And then what happened? A. And that's when he just got off me and that's when Mike got in the car. . . .

Jewel testified that appellant continued for five or ten seconds, but she did not believe that he had ejaculated. She testified that, as the trio proceeded back to McDonald's, appellant asked her to "jack him off," but, although she refused, she did give him her telephone number. After obtaining Lacey's cell telephone number from appellant, Jewel called her and said she was okay and would be there (at McDonald's) in a couple of seconds. Mike parked the car across the street from McDonald's and hugged Jewel before he and appellant departed.

Thereafter, the complainant drove Lacey to Shoppers Food Warehouse, where they met Jewel's mother and then proceeded to Lacey's house after helping Jewel's mother to shop. Upon arriving at Lacey's house, the complainant responded in the negative to inquiries about what was wrong from Lacey's brother, but related what had happened to Lacey's mother. After the police were called, Jewel went to the hospital to be examined. Testifying on behalf of the State was Boston College Professor of Nursing Ann Burgess, whose expert testimony was offered to explicate to the jury the rape trauma syndrome, a condition associated with post-traumatic stress disorder.

Appellant had filed a motion in limine to exclude her testimony. The following hypothetical was presented to Burgess by the prosecutor: Here's the hypothetical. Please, Doctor, assume that you have a young woman who was socializing with her best friend and she met two male acquaintances through other social contacts and ⁴⁸² she thought both of these people were harmless. Assume now that she found herself alone in a parked car with these two young men.

Assume please that she was tricked into going into the backseat of the car, supposedly to have a conversation, look at a book or a magazine. However, assume that instead of having that conversation, the two men grabbed her, held her down and forced her to submit to multiple sexual acts, including sexual intercourse. Dr. Burgess attributed complainant's failure to resist and failure to immediately report the incident and giving her home telephone number to her assailant to behavior consistent with the rape trauma syndrome. Lacie S. testified that she and Jewel dismissed the suggestion by appellant and Mike that they get a hotel room as "normal teen talk" and that Jewel had said that she told them to stop and they did not.

Forensic nurse examiner Tracey Eichelberger testified that her examination of the complainant on the morning after the alleged rape revealed a small laceration in the vaginal and in the anal area. Dr. Julia Lojoie, upon examination of medical photographs, described one of the lacerations as a centimeter long and the other as one and one half centimeters. Karolyn Tomarksky found no semen or sperm on vaginal and anal swabs taken from the complainant. Appellant's testimony, although at variance in material respects from that of complainant, was surprisingly consistent.

He was sixteen years old and a student in the eleventh grade at the time of the incident. The complainant agreed to drive appellant, Mike and a Spanish boy to a party. After the Spanish boy left them, they discovered there was no party. On their return trip, the complainant parked her car in a residential neighborhood and they all got out.

Appellant and Mike smoked marijuana and suggested getting a hotel room, given that the girls were old enough to rent a room. When they began discussing sex, appellant produced three condoms. Lacey told the others that she did not want to accompany them. After driving Lacey back to the McDonald's Restaurant, the complainant drove to a residential area and parked her car.

Jewel climbed into the back seat between appellant and Mike, whereupon the latter put the complainant's hand in his pants. After the complainant refused appellant's request to expose her breasts, Mike asked appellant for a condom and told him to get out of the car. After waiting outside of the car for approximately fifteen or twenty minutes, Mike emerged from the car and said that he "just hit that," an expression connoting that he had had sex with the complainant. Appellant then related his version of what occurred when he entered the complainant's car: Q. When you got in the car, what, if anything, did you say or do?

A. I asked her if she was going to let me have sex with her. Q. What exactly did you say? A. I said, "Are you going to let me hit that?" Q. And what does that mean to you, "Can I hit that?" A. Have sex. Q. What, if anything, did she say?

A. She said yes, as long as I stop when she says to. And then I said, "I'm not going to rape you." Q. Did you feel that was permission? A. Yeah, I thought that that was permission. Q. Why did you say "I don't want to rape you"? ⁴⁸³ A. Just to, because she said, "Stop when I say to," just to tell her that.

It's kind of like to confirm the permission. Appellant took out a condom and put it on. Jewel laid down on the back seat. Appellant placed himself between her legs and tried to put his penis in.

He testified that the following occurred: Q. What did you do with your penis? A. I tried to put it in. Q. Do you know where it was touching or what happened to it? A. No. After I tried to put it in once, it wouldn't go in.

I didn't feel nothing there. Q. What happened? What did she say or do? A. And then she sat up.

She was like, "It's not going to go in," and that's when, after she sat up and said "It's not going to go in," that's when I took off the condom and I put it in my pocket and then knocked on the window for Michael to come in. Q. Who said, "It's not going to go in?" You or her? A. She did. Q. When she sat up, what did that mean to you?

A. That meant stop. Q. Did she say "Stop"? A. No, she didn't. She just sat up.

Q. And you took that to mean stop? A. Yeah. Q. When she sat up, did you try to put it in again? A. No, I didn't.

According to appellant, he stopped immediately and never ejaculated when the complainant sat up. According to appellant, after Mike drove Jewel's car back to McDonald's, she gave appellant her telephone number and hugged Mike as she got out of the car. Thereafter, Jewel and Lacey drove away. At the conclusion of the evidence, the trial judge instructed the jury as follows regarding evidence of "consent" to negate a charge of sexual assault and the force required to sustain a conviction for rape: The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim.

You must be satisfied that the victim either resisted and that this resistance was overcome by force or threat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistance or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, "consent" means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force. After the jury began its deliberations, it submitted two notes which read, "We're not close but would like to stay" and "Can we have until 10:30?" Shortly thereafter, a third note was read into the record: "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind and the," I think it is, "man continues until climax, does the result constitute rape?" Appellant's counsel argued that the court should respond in the negative whereupon the following colloquy transpired: [APPELLANT'S COUNSEL]: Yes.

To me, the clear answer, the unequivocal answer to this question is no. Why? Because they ask, "If a female consents to sex initially and, during the course of the sex act to which she consented —" ⁴⁸⁴ That means that the woman consented to the penetration. She consented to the penis going into her vagina.

The State argued that any slight intrusion into the vagina is rape. Here, this woman in the note consented to sex and allowed a penis to go into her vagina. This is during the sex act. During the sex act, the man ejaculates, but the penis is inside of her when you read the note.

To me, the clear answer to this question is no because she consented to the male penetration. It is in her by consent. THE COURT: Let me say this. That is what you are assuming this note means, but I don't know that that is what it means.

That is the problem. [APPELLANT'S COUNSEL]: Well, it says — [ASSISTANT STATE'S ATTORNEY]: No. [APPELLANT'S COUNSEL]: — she consents to sex initially — THE COURT: What does that mean? [APPELLANT'S COUNSEL]: — and during the course of the sex act, she changes her mind, which means she is having sex — THE COURT: That is what you think it means, but I don't know that that is what it means — [ASSISTANT STATE'S ATTORNEY]: Right. THE COURT: — that is the problem. I am going to have to, I think, respond that I am unable to answer their question as posed and that they should reread the instructions as to — [ASSISTANT STATE'S ATTORNEY]: The elements, read the instructions. THE COURT: — as to the element of each offense. [ASSISTANT STATE'S ATTORNEY]: Well, and "consent," Your Honor, is specifically defined in that instruction.

It means actually agreeing rather than merely submitting. THE COURT: To an extent, it is almost like it is a factual question that they want us to answer for them. It is really a factual question as opposed to a legal question, it seems to me. All right.

How is this: "I am unable to answer this question as posed. Please reread the instructions as to each element and apply the law to the facts as you find them"? [APPELLANT'S COUNSEL]: Judge, it seems to me the note indicates that the female in the note consented to penetration. THE COURT: I hear you, but I don't think that is an absolute. I don't think you can necessarily know what they mean by that note.

That is the problem. They have to decide the facts, apply the law to the facts. Another note was submitted on the following morning which read, "If at any time, the woman says stop, is that rape?" In response to the request of appellant's counsel to give "the exact answer that you gave to the note last night," the court said, "Right. This is the same question in simplest or at least a variation of the same question." It then instructed the jury, "This is a question that you as jury must decide.

I have given the legal definition of rape which includes the definition of consent." LEGAL ANALYSIS I Appellant initially contends that the trial court erred by refusing to answer the questions submitted by the jury regarding whether a sex act initially engaged in with ⁴⁸⁵ the consent of the prosecutrix constitutes rape if the defendant continues after the victim changes her mind. Citing Battle v. State, 287 Md. 675, 683-85 , 414 A.2d 1266 (1980), Maryland law, he asserts, holds that rape does not occur under such circumstances. The State counters that . . . the jury question was ambiguous and trial court properly exercised its discretion in not hazarding its own interpretation of the inquiry, and referring the jurors to the instructions they had already been given. Moreover, even if the question had clearly asked whether a man is guilty of rape if the woman withdraws consent after vaginal penetration has taken place, there is no Maryland authority holding that consent cannot be withdrawn after penetration.

On the contrary, a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse continues by force or threat of force. The State thus concludes that the court's instructions to the jury that "rape is the unlawful intercourse with another by force, or threat of force, and without consent, were therefore entirely proper." A In initially arguing that the question posed by the jury was ambiguous, the State relies on the decision of the Court of Appeals in Battle, supra . There, the question posed by the jury was, "When a possible consensual relationship becomes non-consensual for some reason, during the course of the action can the act then be considered rape?" Battle's counsel believed "during the course of the action" referred to "during coitus," whereas the prosecutor was of the mind that the phrase referred to "a whole chain of events" or after the parties "got in the bedroom or maybe after they had sex." The trial judge, uncertain as to its meaning, nevertheless understood the jury's inquiry to be "Where the original act of sex is by consent whether it is then possible the circumstances could change because of victim's lack of consent after the original situation began as a consensual one." The court's response, in Battle , was "Yes, that it is possible for a situation to start out as consensual then become a non-consensual one in the course of the event." Id. at 678 , 414 A.2d 1266 . In reversing the trial court, the Battle Court reasoned: It is next urged by the defendant that the trial court committed reversible error in not charging the jury that in the commission of a rape, consent may not be withdrawn during the act of intercourse.

The Court fully and correctly charged all of the elements constituting the crime of rape. The jury was further instructed that consent could be withdrawn at any stage "during the preparatory acts." The general rule may be summarized as follows: Consent must precede the penetration. Burdick, The Law of Crime, Vol. 2 s 484, at p. 235. See 44 Am.Jur., "Rape," s 8, p. 906; 52 C.J., s 26, p. 1017, and State v. McCaffrey, 63 Iowa 479 , 19 N.W. 331 (Ia.1884).

( Id. at 435-36, 67 A.2d at 180.) In State v. Allen, 163 Kan. 374 , 183 P.2d 458 (1947), the court said: Appellant argues the evidence failed to disclose force was employed. It will serve no useful purpose to narrate the detailed facts of the episode. It may be conceded, as contended by appellant, the episode started in what appellant has seen fit to denominate a mutually desirable "petting party." It also frankly should be stated the ⁴⁸⁶ woman admitted that at one time during the episode she contemplated sexual intercourse. The trouble is, the evidence also discloses that it ceased to be a mutually desirable affair, the woman resisted and thereafter appellant resorted to force.

The reason, or reasons, for her change of mind are not controlling. The fact she did change her mind, so advised appellant, and thereafter resisted his efforts is controlling. There was ample evidence on the subject of force to make that distinctly a jury question. ( Id. at 375-76 , 183 P.2d at 460 .) (1) Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse.

On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape. The question and the answer here were confusing. In Midgett v. State, 216 Md. 26 , 139 A.2d 209 (1958), since there was to be reversal and remand for a new trial, the Court "deem(ed) it to be necessary and desirable for the guidance of the lower court and to avoid the expense and delay of another appeal to this Court to decide the points or questions of law raised by the objection to the instructions on the law applicable to the charge of kidnapping. . . ." Id. at 38 , 139 A.2d at 215 . The Court said it was "clear that the instructions were not only misleading and confusing, but were particularly ambiguous with respect to the distinction between kidnapping and false imprisonment." Id.

The discussion by Judge Horney for the Court is instructive: In . . . Wintrobe ( v. Hart, 178 Md. 289 , 13 A.2d 365 (1940)), we distinguished between an instruction which is merely erroneous but at least instructs and a misleading and confusing instruction which does not instruct at all. The erroneous though instructive instruction may not be reversible when it appears that the opposite party was not injured. But, as we said, at p. 296 (, 13 A.2d 365 ): ". . . instructions which are ambiguous, misleading, or confusing to jurors can never be classed as noninjurious." We hold that this is especially true in a criminal case where the jury is the judge of both the law and the facts and the instruction is merely advisory.

( Id. at 41, 139 A.2d at 217 .) We hold that the combination of the ambiguous question, ambiguously clarified by the trial judge, and the answer create sufficient confusion in this case to warrant reversal and a remand for a new trial. In the case at hand, the question posed by the jury was, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind, and the . . . man continues until climax, does the result constitute rape?" Factually equating the parties' "different interpretations of the jury's question" to Battle , the State points out that counsel for appellant urged the court to respond that no rape, under the hypothetical, occurred because the prosecutrix had consented to the "male penetration" and the prosecutor was under the impression that the jury was asking whether consent could be withdrawn. The court, expressing the view that the question, as posed, "was a factual hypothetical that the jurors wanted the court to answer, rather than finding the facts for themselves." "I am unable to ⁴⁸⁷ answer this question as posed," was the trial judge's response. "Please reread the instructions as to each element and apply the law to facts as you find them." The State, in its brief, urges that "this phrase is remarkably similar to the ambiguous phrase `during the course of the action' that the Court of Appeals found ambiguous in Battle .

" We disagree. The plain meaning of the jury's words, "during the sex act," leads one ineluctably to conclude that the reference was to the act of intercourse. By contrast, a much broader connotation is conveyed by "during the course of the action. " More importantly, if there had been initially any cause for confusion, it certainly should have been cleared up when the jury submitted the second note the following morning: "If at any time, the woman says stop, is that rape?" The victim's change of mind, posits the State, could have just as probably referred to the "various sexual acts that took place prior to vaginal penetration by Baby, which included attempted fellatio, anal penetration, and the touching of her breasts and vagina; just prior to penetration by Baby; or after penetration." The State then argues that the jury's query regarding "the man continuing until climax" and the facts that neither appellant nor the prosecutrix testified that appellant had ejaculated or that he had engaged in any sort of "back and forth motion" during the penetration is support for the court's duty to reply to the jury's question because reaching a climax was not part of the evidence in the case.

(Citing Brogden v. State, 384 Md. 631 , 866 A.2d 129 (2005)). The State appears to suggest that lack of absolute certitude regarding the jury's inquiry renders it ambiguous. We are not persuaded that the law imposes such a standard as a condition of requiring a response to the jury's inquiry. The mere fact that the initial question referred to "the sex act," rather than, as premised by the State, "during the various sexual acts," would certainly indicate that the jury was not referring to foreplay or other acts incidental to coitus or anal intercourse.

Moreover, the State's argument that absence of testimony that appellant engaged in any sort of "back and forth" motion or ejaculated is "not part of the evidence in the case" misses the point. The question, as posed by the jury, did not assume, as a fact in evidence, that appellant had achieved a climax. A fair interpretation of the jury's question is that it was an inquiry as to the legal effect of a withdrawal of consent subsequent to penetration, and prior to climax. Regarding the ambiguity of the jury's questions, the State's final argument is that "it was not related to either party's theory of the case." According to the State, appellant's closing argument to the jury was that he had stopped prior to penetration when the prosecutrix sat up and said it wouldn't fit.

The theory of the State's case was that Jewel L. had not consented to the initial penetration and that appellant "continued to force his penis into her injured vagina, despite her resistance." Seizing upon the reference to "anytime" in the second question submitted by the jury, the State asseverates that "[t]his question makes evident that the jury was not focusing on the withdrawal of consent after penetration. . . ." At the outset, it is axiomatic that closing argument is not evidence in the case. Thus, the jury was not bound by the closing argument of either counsel. The jury may believe all, part or none of the testimony of any witness. Muir v. State, 64 Md.App. 648 , 498 A.2d 666 (1985).

Accordingly, the jury was free to credit the testimony of the prosecutrix that appellant ⁴⁸⁸ had pushed his penis into her vagina, but not all the way, as well as appellant's testimony that Jewel L. had given her prior consent. In Battle , the Court's affirmative response to the jury's question regarding a "possible consensual relationship becom[ing] non consensual" was found to be error because of the vague temporal premise, "during the course of the action." The Battle Court concluded that the jury's question was ambiguous, then it was ambiguously clarified by the trial judge and the answer created sufficient confusion to warrant reversal and remand for a new trial. No such confusion was presented by the question submitted by the jury in the case sub judice. Stripped of any hypertechnical interpretation, the jury in this case simply wanted to know if consent could be withdrawn after commencement of the "sex act," i.e., penetration.

The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point of time, a withdrawal of consent would sustain a conviction for rape. The jury, in the discharge of its responsibilities to apply the law to the facts as it found them to be, was entitled to a proper response to its inquiries. The Supreme Court put it aptly in Bollenbach v. U.S., 326 U.S. 607, 612-13 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946): The jury was obviously in doubt as to Bollenbach's participation in the theft of the securities in Minneapolis and their transportation to New York. The jury's questions, and particularly the last written inquiry in reply to which the untenable 'presumption' was given, clearly indicated that the jurors were confused concerning the relation of knowingly disposing of stolen securities after their interstate journey had ended to the charge of conspiring to transport such securities.

Discharge of the jury's responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy. (Emphasis added.) B The State alternatively argues that, "Even if the jury had clearly posed the question whether post penetration withdrawal of consent is rape, the instructions given accurately reflected the law in Maryland that rape is vaginal intercourse by force and without consent, regardless of whether consent is withdrawn before or after penetration." The correct answer to the jury's question, it avers, is "yes," withdrawal of consent after penetration constitutes rape. [1] ⁴⁸⁹ The State, in an attempt to demonstrate that the statement in Battle is out of step with the weight of authority, provides us with a compendium of state decisions in which, it asserts, "[a]ll but one have held a woman who initially gives consent to vaginal intercourse, withdraws consent during intercourse, and then is forced to continue intercourse, is a victim of what has been termed post penetration rape." [2] The State next offers a series of arguments in support of the proposition that Maryland law holds that post penetration withdrawal of consent does not vitiate the criminal character of the subsequent intercourse. It points out that many of the decisions are dated. [3] The rationale undergirding the principle that consent, once given, cannot be retracted, it maintains, is rooted in the historical notion that, because women were, in legal contemplation, chattel, loss of chastity was considered to be a devaluation of a man's property; and that the more enlightened view espoused by feminist scholars, medical practitioners and victims militates against a legal theory that a defendant is entitled to persist in intercourse once consent is withdrawn.

Finally, although the Pattern Jury Instructions make no mention of whether rape occurs when consent is withdrawn, the State relies on the definition found therein. Appellant, citing Hazel v. State, 221 Md. 464 , 157 A.2d 922 (1960), argues that the testimony of the complainant that he asked her permission to "do sex with her," to which she responded, "yes," and his cessation of his attempts to penetrate her within five to ten seconds after she said ⁴⁹⁰ "stop," provides the evidentiary basis for a finding that no rape was committed. Appellant had testified that the complainant indicated that she wanted him to stop as he was trying to insert his penis into her vagina and that he withdrew "without any delay in all." The language upon which appellant relies in Hazel is "With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character." Id. at 469 , 157 A.2d 922 . The Hazel Court continues, noting that there is a wide difference between consent and submission to the act.

Id. Submission to a compelling force, or as a result of being put in fear, is not consent. Id. Notwithstanding the language that prior consent negates the criminal character of the subsequent intercourse, the Court's opinion in Hazel , as the State points out, devolves principally upon the distinction between consent and submission to a sexual assault.

Nor does the decision specifically address post penetration withdrawal of consent. More problematic for the State's position, however, is the decision of the Court of Appeals in Battle , wherein the Court said, "On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape." Id. at 684 , 414 A.2d 1266 . The State dismisses the statement on two grounds: (1) that it was articulated as a mirror image of the precept that consent withdrawn prior to penetration constitutes rape and that it was unnecessary to the holding in Battle and therefore dicta; and (2) that the opinion cited to no controlling authority [4] and has not been repeated in any other Maryland decision or incorporated into the Maryland Pattern Jury Instructions. In arguing that neither Hazel nor Battle stand for the proposition that post penetration withdrawal of consent deprives subsequent intercourse of its criminal character, the State merely asserts that the Court never said that consent must be withdrawn prior to penetration for it to be effective or that consent withdrawn after penetration vitiates the criminal character of the act.

With respect to the State's interpretation of Battle , a review of the pertinent passage, in its entirety, is instructive: The Court said: Rape was a common law crime in Maryland prior to the enactment of this section by Chapter 573 of the Acts of 1976 pertaining to sexual offenses. Thus, it was the common law crime of rape which was before the Court in Hazel . However, the present statutory requirement of "vaginal intercourse with another person by force against the will and without the consent of the other person" is an outgrowth of the definitions of rape at common law as set forth in Hazel . For example, 2 J. Bishop, if Criminal Law s 1113 (8th ed. 1892) states, "Rape is the having of unlawful carnal knowledge, by a man of a woman, forcibly and against her will." Professor Bishop refers by footnote to statements on this subject by such learned authors as East, Coke, Hale, Hawkins, Blackstone, and Russell. ⁴⁹¹ Regarding post-coitus consent, the Court elucidated: The authorities are unanimous in the view that consent subsequent to the act of intercourse will not prevent its being rape.

For instance, 2 J. Bishop, op. cit. s 1122, states: We have intimations that a consent given during any part of the intercourse will prevent its being rape. And certainly a consent after the assault, before the penetration, will have this effect. But as to the other question, the true view is believed to be that when the offense has been made complete by penetration, no remission by the woman or consent from her, however quickly following, can avail the man. And the Statute of Westm. 2 is express, that the liability to punishment shall remain "although she consent after." (Id. at 649.) To like effect see, e.g., F. Bailey and H. Rothblatt, Crimes of Violence: Rape and Other Sex Crimes s 433 at 279 (1973); 2 W. Burdick, The Law of Crime s 484 at 235-36 (1946)("(I)n any case there can be no consent after the act, and the crime cannot be condoned by excusing or forgiving it."); Clark and Marshall, Law of Crimes s 5.14 at 356 (7th ed. 1967)("(S)ubsequent consent to intercourse will not purge an assault or attempt to commit rape."); R. Anderson, Wharton's Criminal Law and Procedure s 309 at 643 (12th ed., 1957) ("Consent, to bar the commission of the offense, must precede the penetration."); 65 Am.

Jur.2d Rape s 7 at 766 (1972)("After the offense has been completed by penetration, no submission or consent of the woman will avail the defendant."); and 74 C.J.S. Rape s 11 at 474 (1952). Regarding condonation after the act of intercourse, the Battle Court continued: Dean Burdick further comments: It is said or intimated by some that consent may be given during any part of the intercourse, that is after the penetration but before completion of the coitus. However, an examination of the cases sometimes cited in support of such a doctrine shows that such comments are dicta or else made in connection with evidence relating to the alleged non-resistance of the woman and tending to show that she consented before the act. If penetration alone completes the act, it is illogical and unsound to say that consent may follow the penetration.

( Id. at 236.) The reason for this view is expressed by W. LaFave and A. Scott, Handbook on Criminal Law s 57 (1972), in discussing consent of the victim as a defense to crimes generally: Condonation, the forgiveness of a criminal offense by the victim, is no defense. Sometimes this is explained on the ground that condonation is after-the-fact consent by the victim and thus cannot be any more effective than before-the-fact consent. This, however, might suggest that condonation is a defense in those circumstances where before-the-fact consent would bar conviction, but this is not the case. While before-the-fact consent may negative an element of the offense or preclude infliction of the harm to be prevented by the law in question, this is not true of subsequent condonation.

Such forgiveness "has no proper place in the criminal law. The interest of the state is paramount and controls prosecutions . . . (f)or it is the public, not a complainant, that is injured by the commission of a crime." Acts by the victim alleged to constitute ratification (formal sanction, not necessarily involving forgiveness) are for the same reason no defense. ( Id. 410-11, quoting ⁴⁹² People v. Brim, 22 Misc.2d 335 , 199 N.Y.S.2d 744 (1960).) Citing Wright v. State, 23 Tenn.

(4 Hum.) 194 (1843), the Battle Court concluded that there was little discussion in the cases on the effect of a withdrawal of consent prior to penetration: It is contended, that the charge of the Judge is erroneous in this, that he said to the jury, "It is no difference if the person abused consented through fear, or that she was a common prostitute, or that she assented after the fact, or that she was taken first with her own consent, if she were afterwards forced against her will." This charge is correct in every particular, and fully sustained by authority. ( Id. at 198.) State v. Auld, 2 N.J. 426 , 67 A.2d 175 (1949), is cited in 75 C.J.S. Rape, s 11, supra, along with 52 C.J. p. 1017 n. 86 for the proposition that "where the female consents, but then withdraws her consent before penetration, and the act is accomplished by force, it is rape. . . ." (52 C.J. p. 1017 n. 86 in turn cites Wright.) In Auld , the court said: It is next urged by the defendant that the trial court committed reversible error in not charging the jury that in the commission of a rape, consent may not be withdrawn during the act of intercourse. The Court fully and correctly charged all of the elements constituting the crime of rape. The jury was further instructed that consent could be withdrawn at any stage "during the preparatory acts." The general rule may be summarized as follows: Consent must precede the penetration.

Burdick, The Law of Crime, Vol. 2 s 484, at p. 235. See 44 Am.Jur., "Rape," s 8, p. 906; 52 C.J., s 26, p. 1017, and State v. McCaffrey, 63 Iowa 479 , 19 N.W. 331 (Ia.1884). (Id. at 435-36, 67 A.2d at 180 .) The Battle Court, concluding that there was ample evidence on the subject of force to make the distinction between consent and submission a jury question in State v. Allen, 163 Kan. 374 , 183 P.2d 458 (1947), held: Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape.

Id. at 684, 414 A.2d 1266 . The in-depth analysis engaged in by the Court of Appeals in Battle negates any notion that the pronouncement that prior consent vitiates the criminal character of the post penetration sexual act was inadvertent or mere dicta. Nor have law review articles and other scholars so dismissed the decision. [5] Whether the statement ⁴⁹³ at issue in Battle is dicta, however, is not the relevant question. Having decided that the trial court was obliged "to give the jury the required guidance by a lucid statement of the relevant legal criteria" once the jury expressed a need for such guidance, Bollenbach, 326 U.S. at 613 , 66 S.Ct. 402 , the relevant question— dicta or not—is whether the statement accurately represents Maryland law.

More specifically, citing such "learned authors" as East Coke, Hale, Hawkins, Blackstone, Russell and Bishop, the passage succinctly discusses the common law roots of the issue at hand. Simply put, assume that the statement, as an utterance of the converse of a proposition essential to the decision, is arguably dicta. The pertinent question is whether that pronouncement is an accurate statement of the English common law which is, conceptually, the genesis of the notion that there is no rape where the prior consent is followed by penetration and then withdrawal of consent. Battle says that it is.

The