Was there sufficient evidence of force or threat of force to support a second-degree rape conviction when the victim claimed fear but did not physically resist?

On September 21, 1977, Pat, a 21-year-old separated mother, met Edward Rusk at a bar in Fells Point after attending a high school alumnae meeting. After consuming drinks at multiple bars, Pat agreed to give Rusk a ride home around midnight, cautioning him it was just a friendly ride. When they arrived at his apartment, Pat refused his invitations to come inside, explaining she was separated and could be under surveillance. Rusk then took her car keys, turned off the ignition, walked to her side of the car, and asked "Now, will you come up?" Pat testified she was scared because she didn't know the neighborhood and followed him to his apartment. Once inside, Pat sat in a chair while Rusk went to the bathroom. When he returned, he turned off the lights and pulled her to the bed by her arms. Pat begged to leave, asking "If I do what you want, will you let me go without killing me?" She testified that Rusk put his hands on her throat and began "lightly to choke" her. After he said yes to her question about letting her go, she performed oral sex and had vaginal intercourse with him. Afterward, Rusk walked her to her car, asked to see her again, and gave her directions home. Pat reported the incident to police at 3:15 a.m.

Rusk was charged with second-degree rape in violation of Maryland Code Art. 27, § 463(a)(1) and tried before a jury in the Criminal Court of Baltimore. The jury found Rusk guilty of second-degree rape. Rusk appealed to the Maryland Court of Special Appeals, which reversed his conviction by an 8-5 majority, concluding that insufficient evidence had been presented under the principles established in Hazel v. State to permit the case to go to the jury. The State of Maryland then petitioned for certiorari to the Maryland Court of Appeals, which granted the petition to review whether the Court of Special Appeals properly applied the Hazel standard in determining the sufficiency of evidence.

(Murphy, C.J.)

Yes. There was sufficient evidence for a rational jury to find the essential elements of second-degree rape beyond a reasonable doubt. Under the constitutional standard established in Jackson v. Virginia, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The elements of second-degree rape under Maryland Code Art. 27, § 463(a)(1) are vaginal intercourse by force or threat of force against the will and without consent of the victim.

The principles established in Hazel v. State remain controlling. Force is an essential element of rape, and conviction requires evidence that either the victim resisted and her resistance was overcome by force, or that she was prevented from resisting by threats to her safety. No particular amount of force is required, and force may exist without violence. If the defendant's acts and threats were reasonably calculated to create in the victim's mind a real apprehension of imminent bodily harm serious enough to impair or overcome her will to resist, then such acts and threats constitute the equivalent of force. The victim's fear must generally be reasonably grounded.

The reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine. The jury could have rationally concluded that Rusk's taking of Pat's car keys was intended to immobilize her alone at night in an unfamiliar neighborhood; that after Pat repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared rape; that believing she had no choice, Pat entered the apartment; that once inside, Rusk told her to stay when she asked to leave; that he pulled Pat by the arms to the bed and undressed her; that Pat feared Rusk would kill her unless she submitted; and that when she began crying, Rusk put his hands on her throat and began lightly choking her. Just where persuasion ends and force begins is essentially a factual issue to be resolved in light of controlling legal precepts. Threats of force need not be made in any particular manner, and conduct rather than words may convey the threat. That a victim did not scream or attempt to escape is unnecessary where she is restrained by fear of violence.

Dissent (Cole, J.) The evidence was insufficient to convict Rusk of rape because the conduct must clearly indicate force or threat of force sufficient to overpower the prosecutrix's ability or will to resist. The fear must stem from articulable conduct and cannot be inconsistent with the victim's own contemporaneous reaction. There was no evidence to support the conclusion that Pat was forced to submit to sexual intercourse. Pat was a full-grown married woman who met Rusk under friendly circumstances, agreed to give him a ride, and accompanied him to his apartment in a non-isolated urban area. When Rusk took her keys and asked her to come up, there was no weapon, no threat to inflict physical injury, and no evidence descriptive of a threatening tone of voice. The "lightly choking" was not of persuasive significance since she could still talk during it. Pat's conclusory statements that she was in fear, without more objective evidence of threatening conduct by the defendant, are insufficient to support a rape conviction. The majority departs from the requirement established in Hazel and subsequent Maryland cases that there must be clear and cognizable evidence of force or threat of force sufficient to overcome or prevent resistance. Pat's subjective fear, without corresponding objective threatening conduct by Rusk that was reasonably calculated to create such fear, cannot transform unwillingness into submission by force.