This is a rush transcript from "The O'Reilly Factor," April 21, 2008. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight, three hot topics: a Christian photographer in trouble for not photographing a lesbian couple, a mother sentenced to prison for the beating death of her baby, and a stunning ruling in Maryland about sex and rape. With us now, attorney and FOX News analyst, Lis Wiehl, and attorney and FOX News anchor, Megyn Kelly.
All right. This Maryland ruling is — let me just set it up. A couple of slugs, kids, in a parking lot at a community college in Maryland. They had a date, and they both had sex with the date. And the second guy was told to stop having sex with the date, who consented in the beginning. All the testimony in the court shows that. And then she said, "No, I think I don't want to do this anymore." And they charged him with rape and he got convicted, right?
MEGYN KELLY, FOX NEWS ANALYST: Sort of right. And there was a serious question about whether that consent was real in the first place. She had been strong-armed into, allegedly, being with the two guys to begin with. There was testimony that the only reason she consented was because she felt threatened by these guys.
But having said all of that, there was testimony that would have led a reasonable jury to conclude she did consent to the beginning of the sex and then part way through the sex said...
O'REILLY: No.
KELLY: …no. And the ruling that came down, as a result, was it is rape if halfway through this consensual sex it becomes non-consensual. If the woman says no…
O'REILLY: All right. So if the woman had any part in Maryland — I think eight other states, right?
KELLY: Yes.
O'REILLY: At any part of the act says, "You've got to stop," you've got to stop immediately.
KELLY: Well, yes and no. Two things need to be shown for it to become rape at that point. No. 1, no consent. So you've got the no consent.
O'REILLY: Right.
KELLY: No. 2, it has to be with force or with the threat of force. So, if it's just a matter of going to take me a second to stop, that's not rape. But if there's force or the threat of force, along with the no consent, then it's rape.
O'REILLY: This guy stopped.
KELLY: That's why I have a problem with the way the jury ultimately ruled in this case, and this verdict was thrown out. This guy is going to get a new trial.
O'REILLY: All right. How do you see it?
LIS WIEHL, FOX NEWS LEGAL ANALYST: He should get a new trial. I agree with that. But when she said no, and she testified, "I said no. And he kept going at it," you know, it's the old thing: No means no.
O'REILLY: For how long did he keep going on?
WIEHL: Five or six seconds.
O'REILLY: So hold on. Wiehl, OK.
WIEHL: Yes.
O'REILLY: Now you almost mislead "The Factor" audience, which we never do.
WIEHL: No, I didn't.
O'REILLY: Calm down. Five seconds?
WIEHL: She testified five or six seconds. But I don't think she ever gave — willingly gave consent to begin with. I think...
O'REILLY: But you weren't there, Wiehl. Wiehl, let's just go with the testimony. The testimony is five or six seconds. The guy still gets convicted of rape, Wiehl. Five or six seconds.
WIEHL: He gets another trial. And what the jury has to decide is, in that five or six seconds, was she compelled to continue in the act? That's what they have to decide now.
O'REILLY: Five or six seconds.
WIEHL: Five or six seconds. First-degree rape. Could be 15 years in jail.
KELLY: That can be rape.
O'REILLY: That's pretty tough.
WIEHL: That's pretty tough, but when a woman says no, that's it. No matter...
O'REILLY: That's it?
WIEHL: That's it. Right there. Stop.
O'REILLY: What do you think?
KELLY: Well, as I say, it's not that clear. A woman says no, and there has to be force or the threat of force. That's what rape is, legally. And that's what the jury needs to be charged with...
O'REILLY: I don't want to get gynecological. I'm not going to, because I don't think it's the right thing to do. I think everybody needs to think about five seconds is a — that's that.
WIEHL: Well, first of all, it's not that.
O'REILLY: It's a very — yes it is. Five seconds is five seconds. It's very fast.
WIEHL: Not when you're being compelled. And she testified she was.
O'REILLY: All right. I'm telling you, this puts a — this is tough.
WIEHL: This is a toughie.
KELLY: It's rape. It should be tough. I have to say for the record, I agree with the court ruling. The court ruling is right. When a woman says no...
WIEHL: Right.
KELLY: ...it's time to stop.
O'REILLY: Right.
KELLY: And when you don't stop and you use force to make her keep going, that's rape.
O'REILLY: I agree.
KELLY: The problem is, the facts here...
O'REILLY: This guy stopped in five seconds.
KELLY: ...are somewhat troubling, going to get a retrial.
O'REILLY: I'm not — look, this guy probably should go to jail. I don't care about the guy. I'm just doing the overall thing is that nine states right now, if you're a guy, you've got to be careful.
WIEHL: That's a great message to send: Be careful. Make sure you have consent.
O'REILLY: I love sending messages. All right. Now we have a Christian photographer in New Mexico.
WIEHL: Right.
O'REILLY: A lesbian comes in and says, "I want you to shoot my commitment ceremony."
WIEHL: Right.
O'REILLY: And the photographer says, "No, I'm a Christian. I really don't want to do that kind of work. So I'm not going to do it."
WIEHL: Right.
O'REILLY: And they charge this guy?
WIEHL: Absolutely. That's in violation of the New Mexico civil rights statute, which says you cannot discriminate. Once you're in business — this isn't a hobby. Once you're in business. A restaurant.
O'REILLY: I own a business. I have to shoot everybody that walks in?
WIEHL: Well, if you want to put a sign up and say, "We're not going to take pictures of black people or homosexuals or anybody that I'm going to discriminate against," you cannot do that.
O'REILLY: You've got to take everybody. Do you agree?
KELLY: No, I think she's 100 percent dead wrong. First of all, the person, Elaine, that photographer, was not charged. She was just cited by the Human Rights Commission and paid the other woman's attorney fees to the tune of almost $7,000.
O'REILLY: But that's a lot of money.
KELLY: Just so the record is clear, there's no criminal charge against her.
O'REILLY: OK.
KELLY: But no, Lis is wrong. You do have the right to decline such services. Just because you're in the service business doesn't behoove you — doesn't mean you have to serve everyone.
O'REILLY: But what — hold on. Hold on.
KELLY: Let me make my point.
O'REILLY: All right. I got it. We got your point.
KELLY: No, you don't have my point, because I haven't made it yet.
O'REILLY: What if you're black though and you walk in the door, and the person says, "I don't want to..."
KELLY: There's no religious belief that allows you to not serve black people. But let me tell you — let me tell you the answer to that. On the continuum of services, you've got the guy who sells you a burger, right? That's a product being sold. Yes, you've got to do that. Then you've got a photographer, who's engaged in an artistic field.
O'REILLY: Artistic.
KELLY: No, let me finish my point.
O'REILLY: OK, quick.
KELLY: You take the photograph, that's art. This is the same thing as walking up to an author and compelling him to write a book about gay marriage, and you can't do that. That's a violation of her free speech rights.
WIEHL: You tell the guy who makes that burger, who runs that restaurant. He's going to say I do it as an art form as well. And just think about Denny's. The blacks that were not served in Denny's and how Denny's was slapped big time and should have been. All over this country...
KELLY: A restaurant is different.
O'REILLY: So you're saying that — you're saying that food — hold on. You're saying that food preparation is an art as well.
WIEHL: This restaurateur would certainly tell you that it is.
O'REILLY: All right.
KELLY: Come on, Lis. It's ridiculous.
O'REILLY: I like this. Now the audience can make up their mind.
WIEHL: OK.
O'REILLY: Now, I want to get to Molly Midyette, this woman in Boulder, sentenced to 18 years — 18 or 16? She got the minimum for killing a baby.
WIEHL: Sixteen.
KELLY: Sixteen.
O'REILLY: Sixteen years. All right. We'll get to this next time with the ladies. Her husband now goes on trial. It was a terrible case. We don't have time for it tonight, because you guys were blathering. Blathering and blathering.
WIEHL: Feel the love.
KELLY: We love each other.
O'REILLY: You people have no idea what I go through every week.
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