Calvin Harvey was on trial in D.C. Superior Court on a charge of rape. His alleged victim was a woman who resided in the apartment building where he worked as a security guard and where he also lived.
They were passing acquaintances. According to testimony at the trial, he would smile at her as she entered or left the building or picked up her mail or bought a newspaper in the lobby. Sometimes she would smile back.
Both Harvey, 28, and the woman, who is 29, testified that a sexual act had taken place. They said it occurred in her apartment on the morning of last March 7, a Sunday. The woman testified that Harvey had a pistol. He said he had no pistol, only a can of Mace, and that he did not threaten her with it.
The prosecutor, Assisttant U.S. Attorney Michael Pace, and the defense attorney, Robert Boraks, Of the Public Defender Service, agreed that the woman bore no bruises or other signs of having been physically coerced.
Harvey contended that she had consented to his advances.
The woman said she had submitted in the language of the law, "out of fear of death or grave bodily harm, and for no other reason."
The jury of eight women and four men had to decide who to believe. In doing so, they had to decide this question: must a woman resist an attacker to the point of being injured - even to the point of risking death - before she can bring a rape charge successfully? Must she undergo the further physical ordeal of resisting in order to prove that she did not consent?
The prosecutor and the defence attorney told the jurors in their closing arguments that these questions are not easy.
"If someone comes through a broken window (to commit rape), there is no consent," she Boraks. "In a case like this, it is not unreasonable to require a certain amount of physical resistance (on the part of the women). Then there would be no quesiton that it would be rape."
Said Pace, the prosecutor: "This is not a case where (the victim) was pulled into an alley, and the only quesiton is the identity of the attacker . . . (But) I suggest to you that it's just as much of a rape, just as much an assault against womanhood as the man who pulls a woman into an alley . . .
"Do you think any woman would go through a rape trial and all the hassle it involves if it weren't true?"
Just before the closing arguments, the woman, at the request of Pace, appeared before the jury in the clothes she said she was wearing at the time of the allegal attack.
People in the back of the courtroom jumped up to get a better view. Judge Nicholas Nunzio, who was presiding, said, "Will the spectators please sit down."
The woman - small, slender and apparently tense - wore blue jeans hacked off midway down the thigh and a long-sleeved blouse of the pullover type. Pace explained to her that he would have to desribe the clothes in detail so that the description would appear in the court reporter's transcript.
Harvey had testified that the pants were "short" and that the woman had been wearing a blouse tied into a halter in such a manner as to reveal part of her breasts. The woman told the jury that it was not possible to tie the blouse into a halter.
Judge Nunzio leaned toward Harvey and Boraks.
"You're satisified that they do not constitute 'shot pants,' as they call them," he said.
"Yes," said Boraks.
When the closing arguments were over, Nunzio told the jury that harvey stood accused of rape while armed, rape and assault. He instructed them to consider the most serious charges first and then to move on to the lesser charges. He told them that if they found Harvey guilty either of rape while armed or of rape, it would not be necessary for them to consider the assaul charges.
The jury retired. Yesterday morning, after deliberating scarcely more than an hour, it found harvey guilty of rape.
Harvey remained calm and expressionless. Nunzio revoked the $1,500 bond on which he had been free and ordered him jailed pending sentencing scheduled for march 2.
Irwin Pomerantz, a govenrment chemist who was the jury foreman, told a reporter afterward that the jury had considered the woman's response to her attacker, which, according to the evidence, ahd been relatively passive.
The test the jury chose, Pomerantz said, was "the adequacy of that response judged on what kind of person she was, as best we could determine from her demeanor and the evidence in court.
"Her response could not have been taken as evidence to imply consent."