Criminal Law, Pages 370–374

Rusk v. State (1)

Court of Special Appeals of Maryland, 1979
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Facts:

The victim was separating from her husband and went bar hopping in Baltimore. At a bar she met defendant and agreed to give him a ride home. When they arrived at his apartment, he asked her to come upstairs with him, but she refused, once citing the problems it would cause her marriage. Defendant then went around to her side of the car, opened the door, took her keys, and asked again. The victim then agreed.

When they got upstairs, defendant went to the bathroom for a few minutes. When he came out, they both undressed. The victim begged defendant to let her leave, which he refused. She then asked if he would let her go without killing her if she did what he wanted. The defendant then grabbed the victim's throat and began choking her. She repeated her question and defendant agreed. They then had sex.

Procedural History:

Defendant was convicted of rape and of assault and sentenced to 15 years combined.

Rule:

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"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety."

Issue:

Did defendant use sufficient force or threat of force to constitute rape?

Reasoning:

While the circumstances of being lightly choked in a strange part of town at night may overcome the will of a normal twenty-one year old married woman, such a fear must be reasonable. Nothing in the defendant's words or actions were sufficient to create a reasonable fear that he would have harmed her if she resisted. Thus, defendant did not use sufficient force.

Holding:

No, defendant did not use sufficient force to constitute rape. Rape conviction reversed.

Dissenting Opinion:

Wilner: The majority has substituted their own view of the evidence for that of the judge and jury. Force or threat of force is a separate element from consent. However, force must be illogically determined based on the victim's resistance thereto. How much does a victim have to resist to have its overcoming constitute force or threat of force?

Here, the victim refused defendant's request in an unfamiliar neighborhood at night and expressed her concerns for her marriage. Defendant came around and took her keys, threatening to strand her. Yet we do not know how threatening this was. We do not know how large each person was, what each's life experiences were, or what defendant's mannerisms were. The trial court could have discerned this things and that should have been respected.

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