Text trajectories, legal discourse and gendered inequalities

Applied Linguistics Review 3–1 (2012), 47 – 73 1868–6303/12/0003–0047DOI 10.1515/applirev-2012-0003 © Walter de Gruyter

Text trajectories, legal discourse and gendered inequalities

SuSan Ehrlich

Abstract

Following Blommaert (2005), this paper examines what he calls a ‘forgotten’ context within Critical Discourse Analysis (CDA) and Conversation Analysis (CA) – that of text trajectories. For Blommaert, a limitation of both CDA and CA is their focus on “the unique, one-time” instance of a given text and, by extension, the (limited) context associated with such an instance of text. Such a focus, according to Blommaert, ignores a salient feature of communication in contemporary societies – the fact that texts and discourses move around, are repeatedly recontextualized in new interpretive spaces, and in the process un-dergo significant transformations in meaning. The text trajectory investigated in this paper begins in a legal institution, more specifically, with a 2004 American rape trial, Maouloud Baby v. the State of Maryland. This legal case garnered much media attention and, as a result of such exposure, references to the case have appeared in both mainstream and social media outlets. Hence, as a ‘text’ that has displayed considerable movement across different contexts within the legal system and, subsequently, beyond the legal system to main-stream and popular forms of media, the Maouloud Baby trial constitutes fer-tile ground for the exploration of a text’s trajectory. Indeed, in keeping with Blommaert’s claims, I show how this trial’s ‘text’ undergoes significant transformations in meaning as it is recontextualized in different kinds of interpretive spaces ( both within the legal system and outside of it) and how these transformations in meaning reproduce larger patterns of gendered in-equalities.

Keywords: text trajectory, sexual violence, language ideologies, language and the law, language and gender

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48 Susan Ehrlich

1. Introduction

Following Blommaert (2005), this paper examines what he calls a ‘forgotten’ context within Critical Discourse Analysis (CDA) and Conversation Analysis (CA) – that of text trajectories. Indeed, for Blommaert, a limitation of both CDA and CA is their focus on “the unique, one-time” instance of a given text (p. 67) and, by extension, the (limited) context associated with such an in-stance of text (p. 45). In Blommaert’s words,

We should not restrict the notion of context to what happens in specific communicative events. . . . A lot of what we perform in the way of meaning-attributing practices is the post-hoc recontextualization of earlier bits of text that were produced . . . in a different contextualization process, at a different time, by different people, and for different pur-poses. (Blommaert 2005: 46, emphasis in original)

According to Blommaert, then, limiting one’s analytic attention to a specific communicative event ignores a salient feature of communication in contempo-rary societies – the fact that texts and discourses move around, are repeatedly recontextualized in new interpretive spaces, and in the process undergo sig-nificant transformations in meaning. Moreover, to the extent that speakers may have unequal access to and/or control over contextualizing spaces (as is true in many institutional settings), these transformations in meaning can be deeply implicated in larger patterns of social inequality.

The text trajectory investigated in this paper begins in a legal institution, more specifically, with a 2004 American rape trial, Maouloud Baby v. the State of Maryland, in which the accused, Maouloud Baby, was convicted of first-degree rape and some other sexually-related offenses and was sentenced to fifteen years in jail. This decision was appealed to both the Maryland Court of Special Appeals (the second highest court in Maryland) and the Maryland Court of Appeals (the highest court in Maryland), both of which reversed the convictions of the accused and ordered a new trial. For reasons that will be-come evident, this legal case garnered much media attention and, as a result of such exposure, references to the case have also appeared in both mainstream and social media outlets. Hence, as a ‘text’ that has displayed considerable movement across different contexts within the legal system and, subsequently, beyond the legal system to mainstream and popular forms of media, the Maou-loud Baby trial constitutes fertile ground for the exploration of a text’s trajec-tory. Indeed, in keeping with Blommaert’s claims, I show how this trial’s ‘text’ undergoes significant transformations in meaning as it is recontextualized in different kinds of interpretive spaces (both within the legal system and outside of it) and how these transformations in meaning reproduce larger patterns of gendered inequalities. Crucially, the patterns of inequality that can be dis-


Text trajectories, legal discourse and gendered inequalities 49

cerned in the trial ‘text’s’ trajectory would not be evident if the trial ‘text’ had been the exclusive object of analysis.

That trial testimony can be transplanted into other kinds of communicative events within the legal system is not in itself a new or radical observation; we know that trial testimony can be represented in the closing arguments of law-yers, can be discussed by juries or can be excerpted in the appellate decisions of judges. What is perhaps more controversial, at least from the perspective of legal and (certain) linguistic traditions where a belief in referential meaning prevails, are the effects of these intertextual practices. (See Matoesian (2001), Trinch (2003), Ehrlich (2007), Eades (2008) and Andrus (2011) for other in-vestigations of intertextuality within the legal system.) Indeed, for Bauman and Briggs (1990: 73–75), these practices – what they call ‘entextualization practices’ – have transformative effects. (See also Silverstein and Urban 1996.) That is, once a stretch of talk is “lifted out of its interactional setting” and turned into a “text” (what Bauman and Briggs define as “discourse rendered decontextualizable”), it may bring something from its earlier context, but may also take on different meanings as it is “recentered” in a new context. As Bau-man and Briggs point out, however, not all recenterings or recontextualization of texts within a given text trajectory (Blommaert’s term) are considered to have the same value and legitimacy. In an institution like the Anglo-American legal system, for example, institutional conventions confer greater authority on the version of a case put forward by appellate decisions – as opposed to the version(s) put forward in trials – and, as a result, it is this version that becomes the ‘official story’ of a case and has the potential to circulate outside of the le-gal system, for instance, in the media. In the legal case that is the focus of this paper, however, not only did the trial narratives – those of the prosecution and of the defense – undergo significant modification as they became subject to institutional and ideological constraints and moved into the appellate deci-sions, the ‘official story’ told by the appellate decisions, in spite of its ‘official’ legal status, was also transformed as it moved out of the legal system and be-came embedded in various kinds of media outlets.

2. Transformationsinmeaningwithinthelegalsystem

The first transformation in meaning that I discuss occurred once Maouloud Baby v. the State of Maryland moved out of its trial phase and into the Mary-land appeal courts. That is, upon appeal, the case became known as a post-penetration rape case even though it was not framed in these terms within the context of the trial. So, what is post-penetration rape? The first post-penetration rape case was heard in a United States court almost thirty years ago and since that time post-penetration rape cases have increasingly been heard in


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U.S. courts. Post-penetration rape is defined as a situation in which both parties initially consent to sexual intercourse, but at some time during the act of inter-course, one party, typically the woman, withdraws her consent; after this with-drawal of consent, the other party, typically the man, forces the woman to continue intercourse against her will (Davis 2005: 732–733). The question that has arisen in these cases is whether a rape can legally occur if a victim initially consents to intercourse but then withdraws her consent ‘post-penetration.’ The answer to this question has been different in different jurisdictions and differ-ent courts. Some courts have found post-penetration rape to be a legal impos-sibility – that is, if a woman consents to sexual intercourse, that initial consent prevents the sexual act from ever legally becoming a rape. Other courts have held that a withdrawal of consent post-penetration negates any earlier consent and thereby subjects the defendant to rape charges if he continues what has become non-consensual sexual intercourse.

Like post-penetration rape cases in other jurisdictions, the appellate deci-sions in the Baby case revolved around the legal status of post-penetration rape. For example, on the basis of the defense’s appeal of Baby’s convictions, the Maryland Court of Special Appeals (the second highest court in Maryland) reversed Baby’s convictions in September of 2006, arguing that the trial judge erred in failing to tell the jury of a 1980 case, Battle v. Maryland, which deter-mined that if a woman “consents [to sexual intercourse] prior to penetration and withdraws the consent following penetration, there is no rape” (cited in Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005). In other words, the Court of Special Appeals believed that Maryland was bound by the Battle decision – that post-penetration rape was a legal im-possibility – and ordered a new trial to be conducted in light of this decision. By contrast, the Maryland Court of Appeals (the highest court in Maryland), upon appeal from both the defense and the prosecution, concluded that the crime of first degree rape in Maryland does include post-penetration rape: “the crime of first degree rape includes post-penetration vaginal intercourse . . . without the consent of the victim, even if the victim consented to the initial penetration” (State of Maryland v. Maouloud Baby, Court of Appeals of Mary-land, 2007).1 That is, while the Court of Appeals also reversed Baby’s convic-tions and ordered a new trial like the Court of Special Appeals, unlike the Court of Special Appeals it clarified the Maryland rape statute, arguing that a woman may say “no” at any time during intercourse and a man can be subject to rape charges/convictions if he does not stop.

As I noted above, although the Baby case came to be understood as a post-penetration rape case in its appellate decisions, the trial was not framed in this way, neither by the prosecution nor by the defense. Rather, the prosecution in the case argued that the complainant never consented to the sexual acts initi-ated by Maouloud Baby while the defense argued that she did consent to these



acts. Crucially, neither the prosecution nor the defense invoked the categories of pre- vs. post-penetration consent or withdrawal of consent. So, how did the case become framed as a post-penetration rape case in the appellate decisions – a framing that is predicated on the assumption that the complainant at some point consented to sexual intercourse with Maouloud? In what follows, I at-tempt to show the extent to which gendered and linguistic ideologies, in com-bination with constraints imposed by legal procedures, were responsible for the transformations in meaning that occurred as the trial ‘text’ moved into the appellate decisions.

2.1. The ‘facts’ as represented by the prosecution and the defense

The adversarial nature of trials within the Anglo-American legal system means that determining the ‘facts’ of cases is often not a straightforward task. None-theless, there were a number of ‘facts’ in the Baby trial that the prosecution and the defense agreed upon. The complainant, Jewel Lankford, and the accused, Maouloud Baby, met at a McDonald’s restaurant the night of the events in question – December 13, 2003. Jewel was with her best friend, Lacey, and was introduced to Maouloud because he was both a friend of Lacey’s younger brother and of Lacey’s boyfriend. When Jewel and Lacey were about to leave McDonald’s, Maouloud asked whether he and his friend, Mike, could get a ride in Jewel’s car. They all drove to a community centre where they believed there was a party. Upon discovering there was no party, Jewel drove to a clearing between two townhouses and the four passengers exited the car. Maouloud and Mike smoked marijuana and joked with the young women about getting a hotel room. The four then drove back to McDonald’s in Jewel’s car and Lacey left the group to join a friend. Jewel then agreed to drive Mike and Maouloud to a residential neighbourhood where she parked her car and agreed to sit in the back seat of the car with the two young men. It was at this point in the testimo-nies of Jewel and Maouloud where their stories began to diverge, although it should be noted that the Court of Special Appeals remarked in its opinion that the accused’s testimony “was surprisingly consistent” with the complainant’s (Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005). Below I present excerpts from both the prosecution’s and the defense’s opening statements regarding the events that transpired once Jewel agreed to sit in the back seat of the car with Maouloud and Mike.2

Excerpt 1

1 She climbed in thuh back seat, ( . ) She took with her a: an accessory2 magazine a car accessory magazine, she was gonna show thuh two guys


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3 .hh she got into thuh back seat between them ( . ) and as soo:n as she4 got in thuh back seat ( . ) they both started grabbing her. ( . )5 Maouloud Baby grabbed her shirt and said “why don’t you flash me.”6 ( . ) Michael Wilson grabbed her ha:nd and tried to put it down his7 pants. ( . ) She told them to stop. ( ) They didn’t stop. ( ) She said8 “I have to go.” ( . ) They didn’t let her go. ( . ) Maouloud Baby and9 Michael Wilson refused to stop, ( . ) They flipped her over onto her10 stomach, (0.2) Jewel’s face was in Michael Wilson’s lap, ( . ) he11 asked her and forgive me for thuh language these are his words not12 mine. He asked her to “lick it” so he could get ha:rd. ( . ) A:nd13 meanwhile Maouloud Baby ( . ) was trying to pull her pants down, ( . )14 She tried to pull her pants up but her arms were pinned to her15 si:de, ( . ) This is uh-thuh back seat of a two-door car:, there’s16 three people in thuh back seat, .h and Jewel was unable to move her17 arms. .hh Jewel kept saying no. ( . ) Jewel kept saying stop. ( . ) but18 Maouloud Baby and Michael Wilson persisted.( . ) Michael Wilson and19 Maouloud Baby both put their fingers in Jewel’s vagina, ( . )20 She told them to hurt-th-that it hurt she told them to stop, ( . )21 They did not stop, ( . ) At one point Michael Wilson ( . ) was trying to22 put his penis in her vagina and he put it in his-her rectum and she23 yelled ( . ) and said it hurt ( . ) and they laughed. ( . ) At one point,24 ( . ) Maouloud Baby r:olled up thuh window. ( . ) Thuh window was down a25 little bit.=He rolled up thuh window to keep anyone from hearing26 Jewel scream. ( . ) Jewel kept telling them to stop. (0.4) They didn’t27 stop. ( . ).h Now as you can imagine it was crowded in that back seat28 with Maouloud Baby, ( . ) he’s six feet tall and Michael Wilson, and29 Jewel Lankford, Michael Wilson a:sked Maouloud Baby to get outta30 thuh car. He didn’t do that right away ( . ) but ultimately he did get31 outta thuh car:, ( . ) stood by:, and while he was outta thuh car32 while M-Maouloud Baby was outta thuh car Michael Wilson ( . ) finished33 raping Jew:el, vaginally,=he climaxed, ( . ) Jewel saw that Michael36 Wilson was wearing a condom and she remembered that it was white in37 colour. ( . ) .h And after Michael Wilson was finished he told ( . )38 Maouloud Baby, that it was his turn ( ) and they traded places. ( . )39 Maouloud Baby got into thuh car Michael Wilson got outta thuh car40 ( . ) and Michael Wilson wa:tched ( . ) while Maouloud Baby ( . ) himself41 ( . ) raped ( ) Jewel. ( . ) A:nd you’ll hear that when Maouloud Baby got42 back in thuh car Jew:el ( . ) was very tired and was in shock, .hh and43 he said “are you gonna let me have my turn”. ( . ) and she said “Will44 you stop when I say stop” ( . ) and he started to put his penis in45 her: and she said “stop it hurts” ( . ) and you’ll hear that Maouloud46 Baby did not stop ( . ) and that he proceeded to put his penis in



47 Jewel Lankford’s vagina. ( . ) Maouloud Baby was also wearing a condom48 ( . ) but Jewel did not think that he: had had a climax. ( . ) A:nd ( . )49 when Maouloud was finished,=Maouloud Baby was finished=Michael50 Wilson ( . ) with Maouloud Baby, a:nd Jewel Lankford in thuh back51 seat=Michael Wilson got into thuh driver’s seat ( . ) a:nd started52 thuh car. ( . ) And when Jewel protested ( ) Maouloud Baby said-he53 reassured her he said “Don’t worry Michael Wilson he knows how to54 drive he’s cool.”

Excerpt 1 is from the prosecution’s opening statement; what we see in this excerpt is that Jewel, after enduring much non-consensual sex from the two young men (i.e., Maouloud grabbing Jewel’s shirt and trying to get her to show her breasts (line 5); Mike grabbing Jewel’s hand and trying to put it down his pants (lines 6 –7); Mike trying to get Jewel to lick his penis (lines 10 –12); Maouloud trying to pull Jewel’s pants down (lines 13); Mike and Maouloud putting their fingers in Jewel’s vagina (lines 18–19); Mike putting his penis in Jewel’s rectum (lines 21–22); Mike raping Jewel (lines 32–33)), agrees to allow Maouloud ‘to take his turn’ (when he re-enters the car) as long as he stops when she tells him to stop (lines 42– 44). And it was this agreement that came to be understood as Jewel consenting to sexual intercourse with Maouloud, once the case became framed as a post-penetration rape case. As noted above, the issue for the appellate courts then became whether this initial ‘consent’ protected the sexual intercourse from legally becoming a rape or not.

Excerpt 2 describes the same set of events, but from the perspective of the defense.

Excerpt 2

55 She voluntarily goes in thuh ba:ck seat, ( . ) of thuh sma:ll two door56 car, ( . ) and she says to: Miss Winfrey that she went in thuh back57 seat >in thuh middle a thuh night with two guys that were smoking58 pot< to show them ( . ) a: magazine. ( . ) Common sense. ( . ) An’ I-I59 don’t wanna be in this courtroom ( . ) ta:lking about an eighteen year60 old girl: badly, ( . ) but I-he-I- ( . ) sixteen year old boy:. ( ) Gotta61 defend ‘im.=I gotta DO this. ( . ) So don’t ha:te me for saying ba:d62 things about pe:ople, ( . ) I don’t know why people do things, ( . ) but63 I gotta represent him ( . ) with a thousand percent of my energy. ( . )64 ‘cause he’s <N:OT GUILTY> of a GANG RAPE. ( ) <N:OT GUILTY> of A:NY65 of those six charges. ( . ) She consented with Him. ( ) She consented66 with HIm. ( . ) Six times she consented with HIm. ( . ) Wilson,=I don’t67 know he’s not he:re. ( . ) Okay:¿ ( . ) conSENT, conSENT, conSENT,


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68 conSENT, conSENT, conSENT. Six counts. ( . ) All consent. ( . ) Wilson I69 dunno. ( . ) E’s got his o:wn penis. ( . ) And during thuh ti:me that70 Wilson was with her he was outside uh THUH CAr::. ( . ) HE’s OUTSIde71 uh thuh car then he gets ba:ck in. ( . ) An’ she didn’t say no: tuh72 him, ( . ) When he gets back in thuh car >she doesn’t say no=eh’s a73 sixteen year old kid.< ( . ) lookin’ tuh pa:rty. ( . ) What do sixteen74 year old boys wanna do,=They wanna have SE:X. ( . ) That’s what he75 wanted to ha:ve. ( . ) He didn’t r:ape anybody, ( . ) An’ when he gets76 ba:ck in thuh car after Wilson. does what he doe:s with his o:wn77 penis, ( . ) He gets in thuh car with his penis. ( . ) An’ she doesn’t78 tell him no: ( . ) She consents to: him. ( . ) doing whatever he did.79 His semen’s not- ( . ) You’re not gonna find his semen in the:80 evidence, ( . ) He: unfortunately:=I hate to use this language-I-I81 hate using this language. ( . ) He couldn’t penetrate her. ( . ) He had82 difficulty-he couldn’t penetrate her. ( . ) He tri:ed >but he83 couldn’t,< ( . ) Wanted to: yeah(s)=Sixteen year old- ( ) red blooded84 boy:, ( . ) That’s what sixteen year old boys wanna do:, ( . ) He85 couldn’t penetrate her.=his semen is no:t in the: evidence, ( . )86 Wilson’s se:men’s in the: evidence, ( . ) His se:men’s not in the:87 evidence, ( . ) Did you hear:=no weapon:¿ ( . ) Nobody had a gun: or a88 knife,>=I didn’t hear that.< NO weapon. ( . ) No weapon. ( . ) No gun no89 knife. ( . ) No weapon. ( . ) No threats=>he didn’t threaten her-<he90 a:sked her could do certain things and they did it consensually. ( . )91 ConSENT times six. ( . ) Times six.

In this excerpt, the series of events that preceded Maouloud getting back in the car are not itemized, as they were in Excerpt 1; rather, the defense lawyer as-serts generally that there was consent with respect to all six counts of Maou-loud’s sexually-related charges in lines 64 – 66 and again in line 91. The only events that are described in some detail in Excerpt 2 are those that occurred once Maouloud re-entered the car and ‘tried to penetrate’ Jewel but was unsuc-cessful (lines 81–83). And these events, according to the defense lawyer, were also consensual: for example, the lawyer says in lines 77–78 ‘an she doesn’t tell him no’ and ‘she consents to him doing whatever he did.’ Thus, as noted above, the primary difference between the prosecution’s and the defense’s ver-sions of events is the issue of consent: the prosecution argued that Jewel did not consent to any of the sexual activities initiated by Maouloud while the de-fense argued that she did. The other difference is that the defense argued that Maouloud was ultimately unable to penetrate Jewel while the prosecution said that he penetrated her and, furthermore, did not stop when Jewel told him to stop. Important for the purposes of my argument here is the fact that neither the prosecution nor the defense invoked the categories of post-penetration rape or



post-penetration withdrawal of consent. Indeed, for the prosecution, there was never consent and for the defense, there was never penetration.

2.2. The jury’s communication with the judge

After the jury began its deliberations in the Baby trial, it submitted two ques-tions to the judge. The first question read: “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 re-sult constitute rape?” (State of Maryland v. Maouloud Baby, Court of Appeals of Maryland, 2007). The second question, submitted a day after the first note, read: “If at any time, the woman says stop, is that rape?” (State of Maryland v. Maouloud Baby, Court of Appeals of Maryland, 2007). While the judge did not answer these questions and instead directed the jurors to answer them for themselves based on the legal definitions of rape and of consent provided during jury instructions, what these questions suggest is that at least some of the jurors considered the idea that Jewel’s qualified agreement to have sex with Maouloud (represented in lines 41– 45 of Excerpt 1) was consent. In other words, these questions seem to indicate that the jurors (or at least some of the jurors) assumed that Jewel consented to sex with Maouloud once he re-entered the car and then subsequently told him to stop. And, in asking the judge whether a man’s failure to stop under such conditions constituted rape, the jurors were in a sense responsible for introducing the notion of post-penetration rape into the case. Recall that the foundation of the defense’s appeal to the Maryland Court of Special Appeals was that the trial judge had erred in not answering the jurors’ questions and, in particular, in not telling them about a 1980 case, Battle v. Maryland, which determined that if a woman “consents [to sexual inter-course] prior to penetration and withdraws the consent following penetration, there is no rape” (cited in Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005). That is, it was the defense’s position that the judge should have answered the jurors’ questions by referring them to a case that invoked the category of post-penetration rape and ultimately consid-ered it a legal impossibility.

2.3. Consent or coerced submission?

In spite of the fact that the judge did not answer the jurors’ questions regarding a man’s failure to ‘stop’ post-penetration, the jurors ultimately found the ac-cused guilty of rape and of some other sexually-related charges – an indication that they found the testimony of the complainant credible. So, given that the jury seemed to accept the state’s version of events, one of the issues that arises from this stage of the case concerns the notion of consent that was presupposed


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by the jurors’ questions, and by the concomitant framing of this case as a post-penetration rape case. In other words, the establishment of this case as a post-penetration rape case is predicated on the assumption that Jewel consented to Maouloud when he re-entered the car; yet, how did the kind of qualified agreement that we see represented in lines 41– 45 come to be construed as consent, given that it occurred, according to the state’s version of events, after Jewel had endured much non-consensual sex from both Mike and Maouloud?3 I want to consider this question from two perspectives: First, what does re-search on violence against women tell us about the various ways that women attempt to resist violence? Second, how do certain kinds of assumptions about language, or what linguistic anthropologists have called language ideologies, contribute to the idea that Jewel consented to sex with Maouloud once he re-entered the car?

Research on violence against women has demonstrated that women’s sub-mission to sex can, in many circumstances, be a better strategy for surviving violence than physical resistance, given that physical resistance has the poten-tial to escalate and intensify men’s violence (Dobash and Dobash 1992). For example, the literature on battered women has demonstrated that seemingly passive behaviour on the part of women can be the result of carefully thought-out, creative strategies for dealing with the threat of domestic violence. Camp-bell, Rose, Kub and Nedd (1998), based on interviews with approximately 100 battered women over a three-year period, found clear support for agency on the part of their subjects even when the women adopted compliant and submissive behaviours. For Campbell et al. (1998: 755), “subordinating the self ” was one of these behaviours; it was characterized as a woman’s “conscious decision to be as non-responsive as possible [in order] to stop the escalation of [her partner’s] anger.” In a similar way, research conducted on rape victim impact statements in the United Kingdom (Woodhams 2008) has demonstrated that there are a wide variety of ways that women “resist” the threat of rape that do not involve physical resistance. One set of strategies, what Woodhams (2008) refers to as “offender management strategies”, involve women negotiating with their perpetrators in order to minimize the harm inflicted upon them. For example, women may agree to submit to “lesser” forms of sexual assault in exchange for being let go. In the excerpt from Jewel’s re-direct examination below, we can see Jewel adopting just such a strategy.

Excerpt 3

92 L: Okay, and by the time Mike got out of the car and Maouloud93 got in the car, you had been, correct me if I’m wrong, uhm Mike94 had put his fingers in your- in your vagina.95 JL: Yes. Uh- and Maouloud.



96 L: And Maouloud. And Mike had tried to put his penis in your97 mouth.98 JL: Yes.99 L: And Maouloud had uhm, grabbed your- your shirt and touched100 you on the breast.101 JL: Yes.102 L: And Mike had put his penis in your rectum.103 JL: Yes.104 L: And Mike had put his penis in your vagina.105 JL: Yes.106 L: And that was all before Maouloud got out of the car.107 JL: Yes.108 L: And so by the time Maouloud got back in the car, and you109 said- and- and he said to you, “Are you gonna let me have my110 turn.” (2.0) Did you think that if you allowed that to happen,111 then you would be able to leave and go home?112 CEL: Objection, your honour. Leading.113 Judge: Sustained as leading.114 L: What did you think, Jewel, would happen if you let him do it115 at that point.116 JL: I just wanted to go home.117 L: (1.0) You just wanted to go home. (2.0) And you said, did118 you- you said that you told him, “Okay, if I tell you to stop,119 will you stop?” Did he say anything when you said that to him?=120 JL: =He121 said “Okay.”122 L: And then he tried to put his penis in you. And what did you123 say Jewel?124 JL: I said, “Ow, it hurts.” And I was pushing his knees.125 ((sniffles)) But he kept pushing. ((sniffles))126 L: Did you tell him to stop?127 JL: Yes.128 L: Did he stop?129 JL: No, after uh- he stopped after like, ten seconds or so.130 ((sniffles))131 L: After he continued to push his penis inside you?132 JL: Yes.133 L: (3.0) Jewel, at any point that night did you ever give either134 of them permission to touch you?135 JL: No. (4.0) ((sniffles))136 L: Did you ever consent to any of this?137 JL: No.


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138 L: (4.0) Did you ever willingly engage in any sexual acts with139 Maouloud or Mike?140 JL: No.141 L: That’s all, your honour. Thank you.

In lines 92–105 of this excerpt, we see the state lawyer itemizing the acts of non-consensual sex inflicted upon Jewel by Mike and Maouloud before Jewel’s apparent consent. That is, while Jewel admits in lines 108–121 to al-lowing Maouloud ‘to take his turn’ (and subsequently telling him to stop: lines 126 –127), it is significant to note that this so-called consent occurs after much non-consensual sexual activity at a point in time when Jewel ‘just wanted to go home’ (line 116). Thus, one way of understanding Jewel’s submission to Maouloud’s request that he be able ‘to take his turn’ is as a strategy of resis-tance: a way to resist a prolonging and/or intensification of the sexual aggres-sion Jewel had already experienced from Maouloud and Mike and to be able to go home. But, if Jewel’s agreement to have sex with Maouloud was not in fact a signal of consent, but rather a strategy of compliance or submission designed to end the sexual violence as quickly as possible, why was it not understood in this way as the case moved out of its trial phase and became framed as a post-penetration rape case?4

In attempting to answer this question, it is useful to return to the preceding discussion of entextualization practices and the interpretive processes that ac-company them. Linguistic anthropologists have argued that meta-level under-standings of language, what have been termed linguistic ideologies, can have a profound influence on how speakers use and interpret language. (See Schief-felin, Woolard and Kroskrity 1998 and Blommaert 1999.) For example, a pow-erful ideology surrounding the interpretation of texts in the West is what has been called a ‘referentialist’ or ‘textualist’ ideology (Collins 1996) – a belief in stable, denotational and context-free meaning. According to this idea, meaning resides exclusively in linguistic forms and, as a result, words, phrases, or sen-tences can be extracted from their original interactional and social context and moved to other contexts without any change in meaning. As Mertz (2007: 48) argues, the textualist or referentialist ideology focuses one’s attention on “de-contextualized aspects of meaning, to the exclusion of the more contextually dependent aspects of meaning.” (This view of meaning is, of course, incompat-ible with the theories of meaning held by discourse analysts, pragmaticists, sociolinguists, etc.) Thus, one way of explaining the notion of consent that was presupposed by the jurors’ questions and by the subsequent framing of the case as a post-penetration rape case is by reference to this linguistic ideology.5 Dur-ing the jury’s discussions, the qualified consent that Jewel reported giving Maouloud would have been ‘entextualized’; that is, it would have been lifted out of its interactional setting and segmented into a ‘text’. During this process



of entextualization, other portions of Jewel’s testimony may have fallen away. In particular, the series of non-consensual sexual acts that comprised the con-text for Jewel’s qualified consent may have been erased. And, crucially, in line with the textualist or referentialist linguistic ideology, the meaning that would have been ascribed to Jewel’s one, seemingly consensual, instance of agree-ment was its literal, context-independent meaning – consent. In sum, the ex-traction of Jewel’s words from the entirety of her testimony in combination with the referentialist or textualist ideology – the idea that meaning resides in the linguistic forms of words or sentences – may have facilitated a context-free reading of Jewel’s so-called agreement. And, I am suggesting that a context-free interpretation of Jewel’s agreement precluded or, at the least, made diffi-cult certain ways of understanding Jewel’s responses to Mike’s and Maou-loud’s sexual advances. In particular, a context-free reading of Jewel’s qualified agreement eliminated the series of non-consensual sexual acts that preceded it and, thereby, made difficult its interpretation as coerced agreement, that is, as submission or compliance motivated by a fear of more prolonged or extreme instances of violence.

2.4. The appellate opinions

As the previous sections have shown, it was the jurors who first introduced the notion of post-penetration rape into the Baby case by way of the questions they posed to the trial judge. More specifically, the defense appealed Maouloud Baby’s convictions, arguing that the trial judge had erred in not answering the jurors’ questions in the negative, given the precedential Battle decision (1980), which, in the opinion of the appeal, ruled post-penetration rape to be a legal impossibility in Maryland. In other words, the legal status of post-penetration rape in Maryland was the basis of Baby’s appeal, and, in turn, became the primary issue addressed by the appellate courts. In a discussion of how legal professionals understand the textual authority of legal cases, Mertz (2007) demonstrates the extent to which the procedural history of a case is instrumen-tal in determining what a case comes to ‘mean.’ In particular, appellate courts can only address issues in their opinions that have been invoked during appeals; “issues not raised at trial or on appeal may generally not be addressed by an appellate court” (Mertz 2007: 62). In Mertz’s (2007: 62) words, “the semiotic frame imposed by . . . litigants as they [choose] particular issues to appeal” constrains “the issues to which an appellate court may speak.” In the Baby case, then, because the defense’s appeal revolved around the issue of post-penetration rape, the case became a post-penetration rape case. That is, while the two appellate courts (the Court of Special Appeals and the Court of Ap-peals) disagreed about whether post-penetration rape was a legal possibility in


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Maryland, because of the procedural constraints alluded to above, they both treated post-penetration rape as the central issue in the case.

In spite of the fact that appellate courts are ostensibly concerned with legal issues, and not factual ones, Mertz (2007) has argued that the version of ‘facts’ represented in appellate courts’ opinions will be influenced by the legal issues under consideration in appeals. Consistent with Mertz’s claims, the appellate courts in the Baby case seemed to retrospectively frame the ‘facts’ of the case in a way that was consistent with post-penetration rape, undoubtedly because that was the basis of the appeals in the case. In particular, when the appellate courts represented the sexual events under investigation, they continued to decontextualize Jewel’s one instance of agreement, textually foregrounding Jewel’s recounting of the series of events that occurred once Baby re-entered the car (i.e., Baby saying he wanted to take his turn; Jewel agreeing as long as he stopped when she said stop, etc.) while textually backgrounding her repre-sentation of the series of non-consensual sexual acts that preceded Baby’s re-entry into the car. Consider excerpt 4 below from the Court of Special Appeals opinion.

Excerpt 4

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 neighbourhood 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 car, Mike inserted his finger, 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 . . .

(Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005)

What we see in this excerpt from the appellate court’s opinion is a difference in the way that various parts of Jewel’s testimony are represented: when the opinion represents the events following Baby’s re-entry into the car (i.e., Jewel’s so-called consent), it directly quotes Jewel’s trial testimony (and this is the only instance of direct quotes in the entire opinion); when the opinion rep-resents the events preceding Baby’s re-entry (i.e. the series of non-consensual activities that Jewel reports preceded her agreement to have sex with Baby), it represents her trial testimony indirectly. Previous research on the use of re-ported speech in legal contexts (e.g., Philips 1986; Rumsey 1990; Trinch 2010) has pointed to the greater authority and reliability that direct speech (i.e., direct quotes) is understood to convey (relative to indirect speech), given its (sup-posed) exactitude in the reporting of speech. Philips (1986: 169), for example, argues that the different ways of representing reported speech indicate to lis-teners or readers that the reported speech has different functions or meanings in the discourse. In particular, she shows, on the basis of transcripts from a criminal trial, that direct speech was used to represent evidence that was cru-cial to the case, while indirect speech was used to represent evidence that was less crucial to the case and/or information that provided the background to crucial evidence. In Philips’ words (1986: 154), “quoting is reserved for


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information being presented as evidence directly related to proof of the ele-ments of a criminal charge, to foreground this information, and to give it more fixedness and credibility as ‘exact words’ than other forms of reported speech are given.” The differential use of reported speech in the excerpt above, then, functions to highlight the importance of the events related to Jewel’s so-called agreement, while downgrading the significance of the events leading up to this so-called agreement. These backgrounded events, of course, are the ones that, I argue, provide contextualizing information that is crucial to understanding what Jewel is actually doing when she agrees to have sex with Maouloud. Rather than creating a sense of this contextualizing relationship, however, the textual foregrounding and backgrounding that we see in excerpt 4 has the effect of decontextualizing Jewel’s agreement by creating a distinction or sepa-ration between the two sets of events. Thus, despite the fact that appellate courts are meant to address legal issues and not factual ones, I am suggesting that the appellate courts’ representation of the ‘facts’ of the Baby case supports an interpretation of Jewel’s agreement as consent, rather than as submission or acquiescence, which, in turn, supports an understanding of this case as a post-penetration rape case.6

3. Transformationsinmeaningbeyondthelegalsystem

3.1. Mainstream media

The coverage of the Baby case in the mainstream media continued to represent it as a post-penetration rape case. This is not surprising, of course, given that the official ‘facts’ of legal cases are those that have been “found and written down (entextualized) by an authoritative court” (Mertz 2007: 216), in this case the appeal courts of the state of Maryland. What is especially interesting about the following media report of the 2008 decision from the Maryland Court of Appeals, however, is the way in which even some of the ‘facts’ as represented in the appellate decisions are altered so as to support the primary ‘fact’ of the case, that of post-penetration rape. Consider excerpt 5, taken from the Wash-ington Post the day after the Maryland Court of Appeals declared that post-penetration rape was a legal possibility.

Excerpt 5

InReversalof’06Decision,RapeCanBeChargedifConsentIsWithdrawn

By Dan MorseWashington Post Staff WriterThursday, April 17, 2008



1 Maryland’s highest court said yesterday that a woman who agrees to have sex can change her mind after intercourse has begun, and that a man who refuses to stop can be charged with rape.

2 The holding by the Court of Appeals overturned a ruling by the state’s lower ap-peals court, which in 2006 cited court precedent in finding that consent, once given, cannot be withdrawn.

3 The 2006 decision, which drew wide attention, “was certainly startling,” said Tracy Brown, the executive director of the Women’s Law Center in Towson.

4 Brown welcomed yesterday’s reversal, which, she said, “reflects current standards regarding the rights of women for sexual self-determination and the right for women to withdraw consent.”

5 Despite its holding on the issue of consent, a majority of the court overturned first-degree rape and other convictions that Montgomery County prosecutors secured in 2004 against Maouloud Baby.

6 The case centered on a 2003 encounter in which Baby, then 16, was accused of fondling an 18-year-old and holding her arms while a friend of his sexually as-saulted her in a parked car. Later, the woman testified, Baby told her, “It’s my turn now.”

7 “He was, like, ‘So are you going to let me hit it?’ ” the woman said. “And I didn’t really say anything, and he was, like, ‘I don’t want to rape you.’ ”

8 She said she told Baby they could have sex as long as he agreed to stop if she told him to. Soon, she said, she told him to stop. He continued for “five or so seconds” after she made the request, she testified.

9 The defense argued that Baby was not present when his friend had sex with the woman, and that she and Baby had consensual sex.

10 During deliberations, the jury twice asked Circuit Court Judge Louise G. Scrivener whether a rape has occurred if a woman who agrees to have sex changes her mind after intercourse has begun. Scrivener replied that that was “a question that you, as a jury, must decide.”

11 The Court of Appeals, like the lower appeals court, held that the judge erred in not answering the jury’s question – but the appeals courts took opposite positions on what the judge’s response should have been. The Court of Appeals held yesterday that the judge should have answered that rape can occur after someone initially consents to sex.

12 James F. Shalleck, Baby’s attorney, said that if prosecutors retry the case, he will again argue that the sex was consensual. “When told to stop, my client, as fast as humanly possible, stopped,” Shalleck said.

13 Senior Assistant State’s Attorney Alex Foster, who prosecuted the Baby case, said the holding brings Maryland in line with the “overwhelming majority” of states that have considered the issue of whether consent can be withdrawn.

14 “We lost the battle,” he said, referring to the overturning of the convictions, “but I think we won a war.”


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15 Montgomery County State’s Attorney John McCarthy said that, although no deci-sion has been made, “we are in a great position to retry this case.”

Paragraphs seven and eight report on Jewel’s testimony and, like the excerpt from the appellate decision provided above (excerpt 4), these paragraphs focus on the aspects of her testimony that support a post-penetration rape ‘reading’ of the facts (i.e., Jewel saying that Maouloud could ‘take his turn’ if he stopped when she told him to stop, Jewel telling him to stop, etc.), that is, they do not include information about the non-consensual sexual activity that preceded Jewel’s qualified agreement. And, although the report does not directly quote Maouloud, it does quote Maouloud’s lawyer, James Shalleck, in paragraph twelve, imputing the following words to him: “When told to stop, my client, as fast as humanly possible, stopped.” Interesting about this quote is its seeming incompatibility with the defense’s version of the ‘facts’ as put forward in the trial and as represented in the appellate decisions. Recall that in excerpt 2, from the defense lawyer’s opening statement, Shalleck, in lines 81–83, states that Maouloud tried to penetrate Jewel but was unable to. Likewise, when the Court of Special Appeals represents Maouloud’s testimony, it also shows Maouloud saying that he was unable to penetrate Jewel. Consider the italicized portion of excerpt 6 below.

Excerpt 6

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”?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 fol-lowing 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.

(Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005)

Here, as in the opening statement of Maouloud’s lawyer, we see the defense’s version of the facts: Maouloud tried to penetrate Jewel but was unsuccessful. Thus, when the words, “When told to stop, my client, as fast as humanly pos-sible, stopped”, are attributed to Maouloud’s lawyer in excerpt 5, they are in effect constructing a version of events that is inconsistent with the defense’s case: to describe a man as stopping “as fast as humanly possible” suggests penetration – not attempted, but failed penetration. At the same time, the ver-sion of events implied by Shalleck’s quote would be the logical defense for an accused who had been charged with post-penetration rape. It seems that the transformation of the Baby case into one focused on post-penetration rape has led the defense lawyer and/or the media to develop a defense appropriate to this transformation, at least in public discourse outside of the legal system.7 As in the appellate decisions, then, the ‘facts’ of the Baby case are retrospectively recast here to support an interpretation of the case as one centered on post-penetration rape. And, it is this version of the ‘facts’ that then circulated more widely, beyond the mainstream media.

3.2. On-line websites: feminist backlash discourses

Perhaps the most disturbing (re)presentations of the Baby case have occurred as it has become recontextualized within feminist backlash discourses (Faludi 1991). Following Hill (2005: 123), who argues that “Google technology pro-vides a powerful new avenue . . . for modeling intertextual series,” I used the Google internet search engine as a way of finding non-elite ‘texts’ (van Dijk 1993) that made reference to the Baby case. In just the first five pages of my Google search, I found ten on-line sites that enlisted the Baby case to support what I am calling a feminist backlash discourse. That is, the Baby case is frequently cited to support arguments about women’s power and privilege – presumably brought about by the women’s movement – and the use of this power and privilege to silence and victimize men. The on-line sites that I found include dating websites8, websites devoted to the protection of men’s rights9, a


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website that represents itself as publishing ideas that polite society considers ‘racist’, ‘misogynist’, ‘homophobic’, etc.10, a website that documents ‘fabri-cated’ rapes11 and the website of the False Rape Society.12 Space constraints do not allow me to present and discuss all of these ‘texts’; nonetheless, in order to give readers a sense of their content and tone, below I provide a text that appeared on the website of the False Rape Society. This particular text con-cerns the need to prosecute women who have falsely accused men of rape.

Excerpt 7

1 TheFalseRapeSociety

Dedicated to the men and women of the community of the wrongly accused

1.1.1 It is critical that false rape accusers be prosecuted, even if it means that some will refuse to recant

We received a note from a reader asking our opinion about the matter referenced in the title of this post. We’ve opined on this matter previously, but it is well to revisit it.

It is my belief that it is critical to prosecute false rape claims. The fact that questions such as this are even raised only underscores that our justice system has serious sys-temic problems that will only be exacerbated by granting rape liars de facto immunity for their crimes.

Relying on rape recantations to spare men and boys from incarceration for false rape claims is a snare and a delusion. It is, in fact, likely that adopting a policy of not punish-ing rape liars will have the effect of reducing recantations. Why is that?



A rape liar makes a false claim to fulfill a personal need – often to give her a handy ex-cuse, to exact revenge, or to gain attention. The rape liar is unlikely to drop the lie un-less she believes that doing so will fulfill an even greater, more pressing, personal need than the one that prompted the lie in the first place. Most rape lies are recanted due to the belief that the lie is likely to be exposed and that the liar will be punished more severely if she refuses to admit it.

In point of fact, rape recantations typically occur only after police have found a hole, often a gaping hole, in the accuser’s story and there is little likelihood that the case will go to trial anyway, much less result in a conviction. Police officers apprise the accuser that they’ve found a video, a witness, or some other evidence, and that her story doesn’t add up. That is often enough to get her to recant. But the reason many, if not most, re-cant is due to the fear that their punishment will be more severe if they don’t. If the fear of punishment were removed, it is unlikely that many would recant.

More fundamentally, for every other criminal act, our criminal justice system values the concept of deterrence. Would-be false accusers will not be deterred unless they know they face serious consequences. Without this deterrence, what is to stop many more women and girls from manufacturing rape lies?

Even posing the question about whether false accusers should be punished is troubling. It acknowledges that our current system is deeply flawed because it allows wrongful arrests and even convictions following false rape claims in numbers too significant to ignore.

Instead of advocating to grant women and girls carte blanche to lie about rape, wouldn’t our time be better spent advocating to fix the underlying problem? Specifically, the problem is that we permit the presumptively innocent, who too often turn out to have been falsely accused, to be arrested and jailed on uncorroborated, even far-fetched claims, and often before an investigation has been conducted, much less concluded.

An innocent man or boy should not need to depend on a false accuser’s whim to decide whether she will, in her sole and unilateral discretion, free him from his false rape hell by recanting. For what other crime would we even suggest with a straight face that the perpetrator should be given the right to decide, without fear of punish-ment, whether his victim continues to suffer for the harm he caused? In the case of a false rape claim, the rape accuser has proven herself untrustworthy by telling the lie in the first place. She is the last person whose goodwill the falsely accused should be forced to depend on. And, as noted above, without the threat of even greater punishment for not recanting, most rape liars likely would not recant.

False accusers need to know before they lie that the punishment for a false rape claim will be severe. The problem today is not that we are discouraging recantations by pros-ecuting false accusers. The problem today is that we are tacitly encouraging false rape


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claims by not prosecuting enough false accusers, and by sentencing the ones we do prosecute too leniently.

At FRS, we advocate a sliding scale: for early recantations, before a male has been arrested, the false accuser should be treated more leniently. Recantations should be rewarded, but they should never be a “get out of jail free” card. The longer the lie is permitted to go unrecanted, the greater the punishment needs to be.

Far too many falsely accused men and boys have sat in prison cells and suffered the atrocities of incarceration waiting in vain for a recantation that never was uttered. It’s time we stop depending on the goodwill of rape liars by hoping that they will show mercy to the innocent men and boys whose lives they’ve already destroyed.

Finally, consider this. A 16-year-old boy named Maoloud (sic) Baby once was con-victed of raping an 18-year-old woman in the back of her car. The woman testified that she told Maoloud (sic) he could have sex with her if he stopped when she told him to, but she claimed that when she yelled for him to stop, he continued for five to 10 seconds. He did not ejaculate but withdrew. He and his (sic) the woman drove to a McDonalds, they hugged, she gave him her phone number, and he left. Maoloud (sic) was convicted of first degree rape and other offenses for delaying withdrawal for as little as five seconds, by the woman’s own admission. (bolding in original)

If we are willing to incarcerate a teenage boy for a five second delay, doesn’t a woman deserve some punishment if she allows a man or boy to rot in a prison cell for a day – a week – a month – a year – or many years – because she cared so little about his life that she had him arrested over a lie? The question scarcely survives its statement.Posted by Archivist at Thursday, March 24, 2011

After a long discussion about the need to deter false accusers of rape through prosecution (since they are unlikely to recant otherwise), the final two para-graphs of this post (italicized above) make specific reference to Maouloud Baby’s conviction and to the following ‘facts’ of the case: Jewel allowing Maouloud to penetrate her as long as “he stopped when she told him to”, Jewel yelling for Maouloud to stop, Maouloud continuing to penetrate Jewel for “five to 10 seconds” after she yelled for him to stop. There is no mention here of the events that led up to Jewel’s qualified agreement to have sex with Maouloud nor of the two appellate court decisions that reversed Maouloud’s convictions. In other words, not only are the sexual events under investigation in the legal case decontextualized (as we have seen throughout this text’s trajectory), the events of the legal case itself are decontextualized in a way that suggests Maouloud’s conviction has been upheld, when, in fact, it was overturned by two higher courts. These decontextualized events are then recruited to bolster a backlash discourse where men are represented as the victims of state-



sponsored feminism (i.e., the legal system) and of women who wrongly accuse them of rape. Ultimately, it is the recontextualized ‘facts’ of the Baby case that provide the justification for the more general argument put forward in this post: that women, like Jewel, who are responsible for ‘far-fetched’ and ‘implausible’ rape accusations should themselves be prosecuted.

Conclusions

What I have tried to demonstrate in this paper is the value of looking at text trajectories as a way of getting at larger patterns of power and inequality. As Blommaert (2005) has said, meaning-making practices are never exhausted after one speech event; rather they occur over a series of interconnected speech events and often involve far-reaching re-interpretations of that initial communicative event. I have argued that the framing of the Baby case as a post-penetration rape case did not resonate with the version of events put for-ward by either the prosecution or the defense in the initial speech event of this text trajectory – the trial. In particular, the notion of post-penetration rape was predicated on the assumption that Jewel at some point consented to sex with Maouloud; yet, I have suggested that such an understanding of consent relied on a decontextualized ‘reading’ of Jewel’s qualified agreement to have sex with Maouloud at a point in time when she had already endured much non-consensual sexual activity initiated by both Maouloud and Mike. In other words, from my point of view, a combination of linguistic ideologies, gendered ideologies and legal conventions conspired to reframe this case as a post-penetration rape case in the appellate decisions. And, once reframed in this way, ‘facts’ were retrospectively recast so as to conform to this interpretation of the case – both within the legal system and outside of it.

My claim that this text trajectory provides insight into larger patterns of gendered inequalities may be a surprising one, given that one text in this text trajectory – the appellate opinion from the Maryland Court of Appeals – ulti-mately used the occasion of the Baby case to clarify the state’s rape statute, giving women the right to retract consent after penetration. While this decision clearly supports the sexual autonomy of women in a very general way, it is not clear to me that Jewel’s autonomy as an individual woman was supported by this decision or this case in general. I noted earlier that social power is inevita-bly implicated in the processes of decontextualization and recontextualization (Bauman and Briggs 1990) and that not all ‘texts’ in a given text trajectory will be accorded the same value or legitimacy. Indeed, we have seen that, while the jury seemed to find Jewel’s story credible (i.e., they found Maouloud guilty of rape and of some other sexually-related offenses), this credibility did not


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ultimately endow Jewel’s version of the events with an official legal status. Rather, it was the post-penetration rape story that formed the basis of the ap-peals in the case and, as a result, became the official story of the institution and the story that had the authority to circulate outside of the institution. In spite of the fact that Jewel’s original narrative was found to be credible by the jury, then, this narrative did not survive as the Baby case moved through the legal system. And, these transformations to Jewel’s narrative not only had discursive effects, they also had material consequences. As I have noted above, both ap-peal courts reversed Maouloud’s original convictions and ordered a new trial. However, according to the state lawyer who tried the original case, this new trial will not take place because Jewel seems to be unwilling to testify in yet another trial.13 The ability of rape trials to re-victimize rape victims/survivors is well-documented in the feminist legal literature: Lees (1996: 36), for ex-ample, calls the rape trial “judicial rape”, arguing that it can be more damaging than an actual rape, “masquerading” as it does “under the name of justice.” One indication that Jewel’s trial experience was consistent with Lees’ descrip-tion comes from the state lawyer, who cites the ‘re-victimizing’ aspects of the previous two trials as responsible for Jewel’s reluctance to testify again.14 Thus, not only was the meaning of Jewel’s narrative transformed as it moved through the legal system, arguably, this transformation in meaning had conse-quences for Jewel’s capacity to retell her story in another trial, which, in turn, had consequences for the state’s ability (or lack thereof ) to prosecute Maou-loud in the new trial that was ordered by both appellate courts.

Beyond the effects on particular individuals, however, I want to suggest that the framing of this case as a post-penetration rape case is also implicated in the reproduction of gendered inequalities more generally. An important aspect of rape law reform in the United States has been the requirement in many states that consent be “affirmatively” and “freely-given” (Schulhofer 1998). The rape statute in Maryland defines consent in precisely this way: consent is “actually agreeing to the act of intercourse” as opposed to “merely submitting as a result of force or threat of force” (cited in State of Maryland v. Maouloud Baby, Court of Appeals of Maryland, 2007). That is, agreement, like Jewel’s, that is coerced as a result of force or the fear of force is not deemed to be consent in Maryland, nor in many other American states. Another disturbing aspect of the Baby case, then, is the outdated notion of consent that underlies its framing as a post-penetration rape case. Gavey (2005) has argued that at least part of the struggle against rape involves the development of a new cultural terrain in which it would be completely implausible to read a woman’s passivity and non-responsiveness as sexual consent. It seems to me that the reframing of this case as a post-penetration rape case does not move us towards this new cultural terrain; indeed, such a reframing may account, in part, for the ease with which the case has been enlisted to support feminist backlash discourses that repre-



sent women as fabricators of rape charges and, more generally, call into ques-tion the significance of rape as a serious social problem.

Acknowledgements

Previous versions of various parts of this paper were presented at the Inter-national Gender and Language Conference (New Zealand, July 2008), the Car-diff Roundtable on Sociolinguistics (Cardiff, July 2008), the Women’s Studies Lecture Series at the University of Western Ontario (March, 2009) and the International Forensic Linguistics Association Conference (July, 2009). I thank audience members at those talks for helpful comments. I also thank Alice Freed, Larry Solan and Shonna Trinch and the editor of this journal, Li Wei, for very useful conversations and comments that helped me clarify many of the ideas presented here. All shortcomings are, of course, my own.

Notes

1. The Court of Appeals determined that the Court of Special Appeals had invoked part of the Battle decision that was non-binding, that is, was not the “holding” of the case.

2. Michael Wilson was also charged with rape and some other sexually-related charges, but did not have a trial because he pled guilty to all charges.

3. Note that the defense’s version of events once Maouloud re-entered the car is also inconsis-tent with the idea of post-penetration rape given that the defense argued throughout the trial that Maouloud was unable to penetrate Jewel.

4. It should be noted that my analysis of Jewel’s behaviour as compliance or submission, rather than consent, is consistent with the state of Maryland’s definition of consent. More specifi-cally, the definition of consent provided by the judge (and reiterated in the judge’s answer to the jurors’ questions discussed above) stipulated that agreement to sex be freely-given: that is, consent was defined as “actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force” (Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005). In other words, Jewel can be understood as complying with Maouloud’s demands as a result of “force or threat of force.”

5. See also Eades (2008: 320 –322) for a discussion of the lack of significance attached to the decontextualization of propositions within the legal system.

6. It should be noted that the Maryland Court of Appeals, the highest court in the state of Mary-land, represents these events in the same way as the Maryland Special Court of Appeals. That is, when the opinion represents the events following Baby’s re-entry into the car (i.e., Jewel’s so-called consent), it directly quotes Jewel’s trial testimony; when the opinion represents the events preceding Baby’s re-entry (i.e., the series of non-consensual activities that Jewel reports preceded her agreement to have sex with Baby), it represents her trial testimony indirectly.

7. van Dijk (1991: 152) has argued that forms of direct speech in print media discourse do not necessarily represent what a source speaker has said. Quotations within the print media have a variety of functions, including enhancing the credibility of news reports. Thus,


72 Susan Ehrlich

it is possible that Maouloud’s lawyer did not actually say what has been attributed to him in the news report and that the direct quote has been enlisted in the service of enhancing credibility.

8. http://forums.plentyoffish.com/datingPosts9799038.aspx http://www.datehookup.com/Thread-464777.htm 9. http://news.mensactivism.org/node/9661 10. http://www.inmalafide.com/blog/2011/04/14/rape-is-rape-is-rape-is-a-lie-joe-biden-there-

are-20-different-types-of-rape/ 11. http://www.victimsofthestate.org/CC/FR.htm 12. http://falserapesociety.blogspot.com/2011/03/it-is-far-better-to-prosecute-false.html 13. The first trial in the Baby case (also in 2004) was declared a mistrial. Thus, if Jewel

had agreed to testify in a new trial, it would have been the third time she would have done so.

14. This information comes from personal communication with the Maryland state lawyer who tried the Baby case.

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CasesCited

Maouloud Baby v. State of Maryland, Court of Special Appeals of Maryland, 2005. 172 Md. App. 588, 916 A.2d 410; 2007 Md. App. LEXIS 60.

State of Maryland v. Maouloud Baby, Court of Appeals of Maryland, 2007. 404 Md.220, 946 A.2d 463; 2008 Md. LEXIS 190.

SusanEhrlich is Professor in the Department of Languages, Literatures and Linguistics, York University, Toronto, Canada. She has written extensively on language, sexual violence and the law and is the author of Representing Rape: The Discursive Construction of Sexual Consent (Rout-ledge, 2001). She is currently working on a book project that considers the recontextualization of texts within the legal system. [email protected]


Text trajectories, legal discourse and gendered inequalities

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