Is Saying “No” Enough in Maryland?

The Maryland legislature is debating a bill that removes the requirement that rape victims show they tried to physically resist their assailants.

Maryland’s Court of Appeals (the highest court in Maryland) has ruled that evidence of physical resistance is necessary to show a victim’s lack of consent in rape cases. The appellate decisions have been relied upon in jury instructions given in rape cases. According to Baltimore County State’s Attorney Scott Shellenberger, these rulings and the jury instructions that have spun off from them, essentially make physical resistance an element of rape.

Shellenberger told the Maryland Senate’s Judicial Proceedings Committee (“Committee”) that while physical resistance can be very strong evidence of lack of consent, it is not the only reliable evidence of rape.  He pointed out that a victim might choose to not resist their attacker, and that the lack of resistance was not consent.

Senator Robert A. “Bobby” Zirkin, (D-Baltimore County) and the chair of the Committee, asked whether there was really a need for the statute.  He cited rulings by courts in Maryland that indicated physical resistance is not needed to show lack of consent.

Senator Delores G. Kelley (D-Baltimore County) the bill’s chief sponsor, stated that this statute would place the focus on the alleged rapist’s actions rather than on the victim’s.

The text of SB 217 can be found here.

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