Criminal Law Class Notes 10/17/03


State v. Rusk trial


Prosecution: The question is whether what occurred was rape under the Maryland statute in effect at the time.


1.     No question that intercourse occurred.

2.     Was there force or the threat of force?  The evidence suggests that neither actual force nor actual threat of force was used, and the victim did not physically resist.  However, it is suggested that physical resistance of the victim was not prudent under the circumstances.  The victim was dealing with a stranger.  The prosecution suggests that the defendant’s placing his hands on the victim’s throat constituted a “symbol of power” and an implied threat.  The defendant doesn’t have to use explicit threat statements in order to use active force.

3.     Was the sexual act against the will of the victim?  The victim both verbally refused the defendant’s advances and cried.

4.     Submission is not consent.


The prosecution asks us to put ourselves in the position of the victim and imagine how we would have reacted in the same situation.


Defense: The defense argues that there is a lack of evidence of rape.  The defense presents the facts in a light most favorable to the defendant (of course).


The defense claims that the facts are subject to interpretation.


I don’t know that either argument was very focused on the law.


Jury instructions: we have an instruction on force, and one on resistance, but resistance isn’t required if the victim’s safety is threatened.


Jury deliberations: The jury attempts to dispose of three elements of the offense quickly: the intercourse, the fact that it was against the will of the victim, and the fact that it was without the consent of the victim.


The jury moves to the element of force or threat of force.  At least one juror believes there was actual force in this case, even though the prosecutor (rightly or wrongly) seemed to concede that there wasn’t.


The jury is concerned about whether facts can be interpreted to prove a conviction beyond a reasonable doubt.


Was there a threat of force implied in the fact that she asked “if I do what you want me to do, will you let me go?” and that he replied “yes”?  Is this force?


The jury discusses the significance of the statement above.  How might have the defendant interpreted that statement?  What if he had no intent of raping her when she asked?


Shall “threat of force” be judged based on the subjective position of the victim, or the “objective” view of a “reasonable” victim?  Do we judge the victim against a “reasonable person” or a “reasonable woman”?


Is the defendant’s response to the victim’s fear a threat of force?  Can we tell beyond a reasonable doubt from the record?


Preliminary vote: 4-2 guilty.  In a real-world jury, the 4 will try to change the 2, or possibly the 4 would try to change the 2.


Was the threat of force that the defendant used enough to keep the victim from resisting?  Should the victim have tried to escape?  Did she have a reasonable chance to do so?  Was there a chance for her to get to reasonable safety?


We have a vote the changes from not guilty to guilty, and now we’re at 5-1.  The rationale is that once the sequence of events that leads to the actual act starts, she has nowhere to go and nothing to do.


Final vote: 5-1 guilty.  We have a hung jury.


Comparison to past “trials”


Every other year, the vote was either 3-3 or 4-2 to convict.  There have always been both males and females on both sides of the argument.  In the other section, it went 6-0 to convict for the first time.  Dressler finds it interesting that the juries have gone for guilty more than ever before.


Does it make a difference that we are getting further from the year that these events actually occurred?  Are cultural attitudes changing?


Post your comments on TWEN later.


The adversarial system and cognitive dissonance


The defense thought it was a tough job, but that there was enough to work with.  The prosecution thought that it was a tough job too.  Both sides started out thinking that it was a hard case.


By the time of the trial, the defense felt more or less the same way about the case.  The prosecution felt strongly about his case.


In the past, the attorneys in this mock trial each felt very strongly about their own case once it came time to get up in front of the jury.


Dressler says that this often happens in the adversarial system.  When you have to take a position that initially runs against your values, the dissonance that results becomes so great that you convince yourself that what you must argue is correct.


What do you do if you don’t believe in your client?  Dressler says that you can’t really do what you have to do unless you convince yourself that your client is right.  In the adversarial system, two stories are told and the judge and jury must choose between them.


If you’re going to do the job, Dressler argues, you better do it right.  He says that by the time you get to a jury, most lawyers reach the point that they really believe that they’re right, at least insofar as the law is on their side.


Why this wasn’t realistic


The timing was phony.  Everything would take a lot longer in real life.  Also, the lawyers would have been involved in jury selection.  We didn’t see the witnesses and we missed out on a lot of other relevant evidence.  Rusk wouldn’t have had to testify.  In 95% of criminal cases, the defendant does not testify, even when the defendant is factually innocent or the attorney thinks the defendant is factually innocent.


The only thing the jury can do is study the defendant’s behavior as he sits at the defense table.


In the real world, the attorneys would have made arguments about what jury instructions should be given.  The lawyers aren’t going to spend much time lecturing the jury on the law.  The lawyers know that the judge is going to do that for them.


The jury process


The selection of the jurors can impact the nature of the debate.  For example, the foreperson for the jury in the big section started by taking a straw vote immediately.  Different approaches may lead in different ways.  Today, a more structured approach was taken.


Lawyers rarely end up on juries because it is feared that a lawyer on a jury will control the jury and that the others will be lost in the process.  Attorneys try to keep “strong-willed people” off the jury.


A majority of the class outside the six jurors would have voted to acquit.


Was there reasonable doubt in this case?


The jury is supposed to represent the mores of the community.  They will use any instructions related to what is “reasonable” to apply their own personal sense of what is reasonable.


A jury cannot convict a person just because they don’t like the law.  Their conviction can get overturned on appeal if it is not in line with the law.




Dressler notes that both attorneys tried to put the jurors in their clients’ shoes.  The prosecution used the “wallet example” to argue that the law of rape is wrong.  There is something very different about the crime of rape than the crime of robbery.  If we look at the physical act of robbery, it is the physical act of taking the wallet from a person.  Our natural understanding is that robbery is never something I want to have happen.  However, sex is something that is sometimes desired and sometimes not.  Rape is rape because of the mental state of the victim.  Therefore, we apparently need special evidence to show that the sex was unwanted.


Dressler thinks that defense made the defendant out to be unrealistically innocent.  The defense attorney might want to acknowledge that his client is a creep.  But, he would continue, it doesn’t matter to the law whether the defendant is a creep or not.  The jury is not to pass judgment about the defendant as a person, but rather to make a determination of how the law applies to the facts.


Dressler says that the prosecutor wants to describe the victim as “the victim”, but the defense shouldn’t use the word “victim” as a matter of strategy.  The defense wants to call her “the accuser” or “that woman” or something like that.  This is pretty much only going to be an issue in rape cases; there is obviously a victim when you’re talking about murder.


Judging the victim


One juror was upset that the jury as a whole focused on what the victim did or should have done as opposed to what the defendant did or should have done.  Dressler says that this is a very telling point and one of the major criticisms leveled by reformers of rape law.  If there is a resistance requirement, then we are in some sense trying the woman and asking if she resisted adequately.


Can you have force with consent?  In the traditional law, yes.


The resistance requirement


Where does the resistance requirement show up in the Maryland statute?  We live in a statutory world, and we only turn to the common law when there is some ambiguity as to a statute.  Some courts argue that resistance is part of force.  Other courts interpret the “against the will” part to suggest there must be some kind of physical battle going on.


“Requiring” the woman to resist for there to be a successful rape prosecution may actually increase the risk of physical harm to the woman.  So why would the law want to require women to take risks to their own life?  Is it because all judges hate women?  That’s hard to see.


Maybe we need to provide notice to the man that the woman is not consenting.  Resistance could be conceived of as a form of notice.  Also, we’ll need to prove a mens rea of rape, though it is a general intent crime.  A reasonable mistake of fact would be a defense to rape.  If the woman resists, and the man proceeds anyway, it vitiates his possible defense of reasonable mistake of fact.


Another argument out of the common law is that if a woman is “what a woman is supposed to be” that the only natural thing for the woman to do is to protect her “virtue”.  Therefore, the argument goes, if she doesn’t care enough about her “virtue” to protect it, then why should we?  This probably stinks to us now.


Coughlin tried to explain the law of rape in terms of the Victorian period and the use of rape as a defense to adultery.  All forms of fornication (sex outside of marriage) were considered immoral.  So if the woman resists, it shows that she was an unwilling participant in something that was considered a crime on the part of both parties.


The common law rule of resistance


If the man used force likely to cause death or serious bodily injury, the law at common law did not require the woman to resist.  If the man used less force, then the woman was required to resist.  At common law, the woman had to resist to the utmost to fight the man off.


But if the woman has to resist, one of two things happens: (1) the man stops, or (2) the man overcomes her resistance, which constitutes the force necessary to the offense at common law.


If we take away the resistance requirement, there is a problem for legislatures: How much force is needed?  Is the sexual act itself the force?


Force and threat of force are two separate things.  The discussion was a little confused on this point.  Choking is the use of force.  The choking could also be included in other things to suggest what further threat may be.  But the point is that you may have threat of force without any actual force at all and still have the offense of rape.


The statement “If I do what you want, will you let me go without killing me?” may be construed as an implied threat of force based on his saying “yes”.  You can fear all you want and that doesn’t make it a threat.  However, the reasonable implication is that this would be interpreted as a threat.


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