The Kind of Case Changed By Maryland’s New Rape Law

April 19, 2017

According to an article in BuzzFeed News,

Maryland rape victims no longer need to prove they physically fought back against their attackers, according to a new bill signed today by Gov. Larry Hogan that changes the state’s legal definition of rape.

Under the new law, “Establishing that evidence of physical resistance by a victim is not required to prove that a sexual crime was committed.” Goldberg v. State, 395 A.2d 1213 (Md.App. 1979), provides a good example of the type of case that will be prosecuted differently under the new law.

Note: The content that follows is graphic.

In Goldberg,

The eighteen year old prosecuting witness was a high school senior who worked part-time as a sales clerk in the Merry-Go-Round clothing store at Towson Plaza. Around 1:00 P.M., on August 10, 1977, she was at work when the appellant, aged twenty-five, entered the store. The prosecuting witness started out trying to sell the appellant clothing but ended up being sold a story by the appellant that he was a free-lance agent and thought she was an excellent prospect to become a successful model. They arranged to meet at 5 o’clock when she got off from work.

According to the prosecuting witness, the

appellant “came over to me and he started unbuttoning my blouse. He said this is what I want you to do”. She pulled her blouse together and said “no”. Asked to describe what happened next she said:

“He just kept on smooth-talking me and saying I won’t hurt you. This is what I do to all the models that I interview. And he, you know, started Motioning me to take my blouse off and everything, and then I went through the same thing with every piece of clothing. It was like, you know, kept on trying to tell me to take it off, and I didn’t want to. And he kept on trying to convince me that he was still trying to convince me that this was this modeling job, and I knew that it wasn’t any more.”…

She said she removed her clothes because she “was really scared of him”. “There was nothing I could do”. When asked what caused her fright she said: “Because he was he was so much bigger than I was, and, you know, I was in a room alone with him, and there was nothing, no buildings around us, or anything, and I mean wouldn’t helped if I wouldn’t help me if I didn’t. It was like being trapped or something”. On cross-examination she said she was “afraid” she was “going to be killed”.

After her clothes were removed, the appellant “pushed” her down on the bed and tried “to move (her legs) in different ways, and (she) kept pulling them together, and telling him that (she) didn’t want to do it, and just wanted to go home”. He kept telling her that he wouldn’t hurt her “and just to relax”. But she was “just really scared” and she was “shaking and my voice was really shaking” and she “kept on telling him (she) wanted to go home, and that “(she) didn’t want to do this”; that she “didn’t want to be a model, and (she) didn’t want to do it any more. Just to let (her) alone”

Later, after the prosecuting witness made the decision to leave and started putting on her clothes, the appellant pulled away her clothes, and then:

Q. What did he say?

A. He said don’t worry. What are you doing that for. I am not going to hurt you, and he kept telling me just to relax, and not to be nervous. And he laid me down on the bed and tried to get me to that stuff again, and I told him I didn’t want to do that.

Q. What happened then?

A. And then he put his arms up on my stomach and his torso was in between my legs. He said just take your time; take a deep breath. And then he moved up on me and placed his penis in my vagina.

According to the Court of Special Appeals of Maryland, this testimony was insufficient to support a rape conviction:

First of all, we find nothing in the record evidencing any real resistance by the prosecutrix to anything the appellant said or did. It is true that she Told the appellant she “didn’t want to do that (stuff)”. But the resistance that must be shown involves not merely verbal but Physical resistance “to the extent of her ability at the time”The State points to her testimony that when penetration occurred she “squeezed (her) legs together and got really tense”. Assuming that this was evidence of her reluctance, even unwillingness, to engage in vaginal intercourse, it was not evidence that she resisted “to the extent of her ability” Before the intercourse occurred.

We are left therefore with the question of whether the prosecutrix’s lack of resistance was caused by fear based upon reasonable apprehension of physical harm. We find no legally sufficient evidence warranting an affirmative answer to that question.

So, that was the state of the law in Maryland before yesterday: In order to prove that a rape occurred, the prosecution had to establish that (1) the victim physically resisted the assailant; or (2) that the victim didn’t physically resist the assailant due to reasonable apprehension of physical harm.* Verbal resistance was not enough.

_________________________

*Obviously, there was a good argument for reasonable apprehension in Goldberg, but this is the type of argument that now no longer needs to be proven.

-CM