A Maryland appellate court decision reversing a Baltimore rape conviction will significantly restrict the kinds of cases throughout the state in which prosecutors will be able to prove a woman was raped, legal experts said yesterday.
The court Wednesday overturned a rape conviction in a case where the woman testified that a man "scared" her by the way he looked at her and was "lightly choking" her before the alleged rape.
The actions were not enough to create "a reasonable fear that if she resisted, he would have harmed her," the court ruled in an unusual 8-to-5 decision.
In a sharp dissent, five judges asserted that the majority opinion had "perpetuated and given new life to myths about the crime of rape that have no place in our law today." One expert on rape statutes in the United States was even more critical, saying the new ruling placed Maryland among "the least progressive" states in the area of rape law.
"Practically speaking," said Dana Levitz, head of the sex offense unit in the Baltimore County prosecutor's office, "it will be difficult to take a rape case into court from now on unless the victim was physically hurt or unless [the defendant] exhibited a weapon or articulated a threat like "i'm going to kill you.'"
Deborah Handel, head of the state attorney general's criminal appeals division, said the office "is seriously considering" appealing the ruling to the state's highest court. But for now Wednesday's decision by the Court of Special Appeals stands as Maryland law.
The decision came in a 1978 Baltimore case, in which Edward S. Rusk was convicted of assault and second-degree rape and sentenced to concurrent terms of 5 and 10 years in prison.
The victim was a 21-year-old woman who met Rusk at a bar she was visiting with a woman friend, who apparently knew Rusk.
According to the majority opinion and the dissent, the victim recounted the following events at Rusk's trial:
When she was ready to leave the bar, Rusk asked her for a ride home, and she agreed. She drove him to a neighborhood that was unfamiliar to her and stopped, with the motor still running, to let him out at about 1 a.m.
When Rusk repeatedly asked her to come into his rooming house, she refused. Rusk then took the keys out of the car, walked over to her side, opened the door and said, "now will you come up?"
The woman testified that she "was scared" because he took the car keys, because she was in a strange part of town, and because of "the way he looked at me and said 'come on up, come on up.'"
She accompanied him to his room, and after he left her there for a few moments, he returned. Though she asked to leave, he pulled her onto the bed and started to undress her. At his direction, she removed his clothes.
She testified that when she still begged to leave and started to cry, "he put his hands on my throat, and started lightly to choke me." After that, she testified, she did "what he wanted me to do."
Citing the woman's failure to try to run and seek help in the street or rooming house, Judge C. Awdry Thompson wrote for the majority that he was "unable to see any resistance on her part to the sex acts..."
But in the dissent, Judge Alan M. Wilner rebuked courts in general for focusing on the victim's reactions instead of the defendant's actions.
"How much resistance must she offer?" wilner asked in his opinion. "Where is that line to be drawn between requiring that she either risk serious physical harm, perhaps death, on the one hand, or be termed a willing partner on the other?"
Wilner noted that studies show that victims who physically resist attacks increase the chance of serious injury and that law enforcement agencies warn women "not to antagonize a potential attacker."
He asserted that the woman in this case "offered the very type of verbal resistance that is prudent, common and recommended by law enforcement agencies."
Assistant Attorney General Handel said that rape prosecutions where there is no weapon, no overt physical injury and no physical resistance always have been "close cases" to call. But the law provides that where there is "a threat of force," rape can be proven.
Wednesday's decision would make it much more difficult to prove these cases, she said.
"And," Handel added, "there's one possible impact we'll never be able to measure -- the discouragement of women from reporting these incidents to police."
Prosecutor Levitz said that this and previous appellate decisions in Maryland "tend to be going in one direction, looking at the victim's actions, more than the defendant's."
New Jersey lawyer Gary Mitchell, who has been conducting a study of rape laws nationally, said the majority of states have attempted to jettison the whole concept of a woman's resistance or consent from their laws.
Maryland has a "very traditional" law retaining this concept, and made it even more restrictive with the appellate ruling, he said.