Pretty Fucked Up Shit

     A Maryland court has recently ruled that if a woman consents to sex, the man may continue to have sex with her even if she withdraws the consent. The court acknowledged that this ruling was based on an antiquated view of woman as chattel, but they said their hands were tied due to precedent. I dunno. Is any court truly an absolutist on precedent? Doubtful. But I can understand the dilemma, which is analogous to Northern judges faced with enforcing the Fugitive Slave Act in antebellum America. It is hard to imagine a law more offensively unjust (or one that violated the 'states' rights' that the South was found so selectively essential to their freedom). But the law wasn't ambiguous, so what was any particular Northern judges obligated to do?

    Ronald Dworkin has argued that judges operate under two criteria: fit and justice. The first measures how closely the current judgment matches up with the established law. This is the criterion of precedent. The other criterion is that of substantive justice. And the two criterion operate under a sliding scale, the looser the fit, the greater the interest in justice must be. Think of the Brown decision that overturned much precedent because the issue of justice was so important. The important point that Dworkin makes is that both of these criteria are part of the law. So, the judges in the case under consideration made the wrong legal decision by overemphasing the criteria of fit over the criteria of justice.

    The legal positivists argue that there is a sharp distinction between legal issues which are based on interpretations of words and precedent and moral isssues. The legal positivist could and should say that the case was a great miscarriage of justice, but that the case was decided correctly as a matter of law.

    Which is correct? I leave that to you my gentle readers.

Comments

[Steve Calderwood]

Precedent? Which ones? To the best of my knowledge, no other court has made a similar ruling and had it upheld on appeal.

And precedence doesn't completely tie judges hands. If the judge really thought the precedent was wrong, then s/he should've ruled otherwise and fed the case right into the appeal's court mouth.

This just seems like a very odd ruling.

[eripsa]

This seems like a rather abstract way of complaining about this ruling.

Which, by the way, I don't completely disagree with. The court maintained that after sex has been initiated, it is still acceptable to bring forth abuse and assault charges, but rape charges were not appropriate. I think thats right. If rape is unwanted penetration, then rape can't happen after consenting penetration. But surely abuse and assault can.