Wednesday, November 01, 2006

Sometimes You Really Have To Read The Entire Thing

Irony is really dead for me and so is parody as it is simply too hard to distinguish those from the insane and inane ravings of the religious fundies and conspiracy theories nuts. And given that I read Fundies Say The Darnest Things everyday, I get a huge dose of these ravings.

But one post in particular struck me and I'm replicating it here
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 concept, undergirding the Battle holding, rooted in ancient laws and adopted by the English common-law,views the initial “de–flowering” of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party - the father or husband. This initial violation of the victim also provided the basis for the criminal proceeding against the offender.

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. Maryland adheres to this tenet, having adopted the common law, which remains the law of the Land until and unless changed by the State’s highest court or by statute."

Normally given huge chunks of words in a long paragraph on this site, I would simply tend to skim through it to get the gist. And while the idea of course gave me a little jolt, I realised that oddly enough, it was a little too well written and some parts of it seem terribly familiar. I meant the words, Common Law, jumps at you when you're a law student and so I took a closer look and in fact checked the attribution of this quote.

To my shock and horror, it was a decision by a judge in the Maryland Court of Appeal and even given all the crazy things that judges have said I just did not want to believe it. So I clicked on the decision and read the damned 51 page decision.

Yup, it was a misunderstanding. The quote above makes a lot more sense if you realise that Battle refers to a case. The "explanation" above is the explanation of the basis of the Common Law ruling in Battle.

The matter before him was an appeal for a criminal conviction and one of the legal issues here is whether the trial judge misdirected the jury by not responding correctly to their question as to whether women have the right to withdraw consent after initial penetration. The answer here as to the current statuts of Maryland Law is no because of the controlling case of Battle v. State of Maryland. The misdirection is actually grounds for a retrial or even an overturning of the conviction on due process so it's pretty important.

As he points out, the legal issue here has not been overruled or commented upon negatively and therefore the trial judge is still bound by legal precedent (unfortunately the trial judge thought it was a factual not a legal issue or he could have ruled as a matter of law that Battle is no longer good law)

And in case you're wondering why he does not simply overturn the ruling in that case, the short answer is that he can't simply because it's not an issue before him. As a judge he can only look at the issues before him and unfortunately the issue here is not the continued validity of the law.

Anyway, you would be pleased to note that the person contributing this quote has very kindly changed the entire submission to reflect that it is very unlikely to be the judge's personal opinion on this matter.

But yes, one of the problems about law is that it's a little hard for laypeople to initial pick up a judgment and read it and understand it. It's not simply a matter of reading and comprehension. Well, it is that but the jargon and structure needs familiarity to properly comprehend as well as a knowledge of how the judicial system works.

But it's fairly easy to teach it and most law students pick it up fairly rapidly. And I think it's a fairly important skill. In a manner of speaking, I think it's way easier to understand than a scientific paper and if we as the public should pick up the skill of reading scientific papers, more so I say for reading court judgements.




Post a Comment

<< Home