Rusk v. State
Court of Special Appeals of MD - 1979
- P was 21 year old female out at a bar. P met D there. D asked P for a ride home; she agreed.
- D asked P to come up to his apartment. She refused. D removed P's keys from the ignition of her car and asked her again. She consented.
- P testified that she was scared at this point. In his apartment, D went to the bathroom, P did not try to escape.
- P said that she asked D if he would let her go without killing her if she did as he wanted. D lightly choked her. She then asked if he would let her go if she did what he wanted and he said yes.
- P performed oral sex and then P and D had sexual intercourse.
- Trial court found D guilty of second degree rape and assault.
- MD Court of Special Appeals reversed, found D not guilty of second degree rape.
- MD COA reversed, found D guilty of second degree rape.
- Can a rape conviction be upheld in MD when there was no explicit force and the victim made no effort to resist.
- Under the old rule (MD Court of Special Appeals), a rape conviction cannot be upheld in MD when there was no explicit force and the victim made no effort to resist.
- Under the new rule (MD COA), a rape conviction can be upheld in MD when there was no explicit force and the victim made no effort to resist as long as there is proof that the victim's fear was reasonable.
- Force is an essential element to the crime; it must be shown either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.
- The victim's fear which overcomes her will to resist must be a reasonable fear.
- In this case, there was not sufficient evidence of reasonable fear.
- The court is confusing lack of consent with threat of force. The court also looks too much upon the victim's acts, not the acts of the D.
- If the acts and threats of the D were reasonably calculated to created in the mind of the victim a real apprehension, due to fear, serious enough to impair over overcome her will resist, then such acts and threats are equivalent of force.
- If victim had given the assailant her money instead of her body, this would have been an easy case for robbery.
- Rape victims who actively resist are more likely to be injured than those who did not.
- The MD COA reversed the reasoning above and adopted the reasoning of the dissent.