State v. Rusk
Court of Appeals of
Dressler, pp. 368-369
Issue: Was the Court of Special Appeals correct in reversing Rusk’s conviction? In particular, was the reasonableness of the victim’s apprehension of fear a question of fact or a question of law?
Conclusion: The Court of Appeals overrules the Court of Special Appeals and reinstates the conviction. Cole dissents.
Notes and Questions
1. Estrich faults the judges for demanding that women act like men. I’m not too sure. What if we imagine that all of the operative facts of the case are the same except it takes place between two men rather than a man and a woman? If a man behaved the same way as the victim in this case, would the court have ruled differently, notwithstanding possible (maybe likely) prejudice based on sexual orientation? If Estrich’s logic holds, a man in such a situation would be expected to resist rape by force while a woman would not.
2. It seems like some of these elements are inherent in some of the others. I imagine the type of force contemplated was heavy physical force of holding the other person down or beating them into submission rather than the type of force used in this case. I think a skilled prosecutor could argue that the cited statute includes the threat of economic harm as a possible element, but there may be case law that says otherwise. I have to wonder, though, if society wants to make forced sex by threat of economic harm exactly the same grade of offense as forced sex by threat of physical harm. They’re both serious, but I think there is a different in seriousness.
3. The resistance
requirement seems to come from case law in
The Code approach is better than the “traditional” approach, but probably still lacking.
4. No one would consent to robbery. But some rapes, arguably, would be perfectly legal sex but for the internal mental state of the victim. Therefore, there is a higher risk of false reporting than the other crimes listed. I think this is a reason to treat rape differently, although we may want to abandon it as a matter of policy.
5. The prosecutor
would point to (1) the difference in size—and presumably strength—between the defendant
and victim, (2) the fact that the defendant said “I don’t want to hurt you”, (3)
the defendant touched the victim’s shoulder, and (4) the defendant carried the victim
to the wooded area.
The defense would counter by saying that (1) the difference in size didn’t come into play because there wasn’t a physical fight involved, (2) the phrase “I don’t want to hurt you” is ambiguous, and (3) the victim was on her bicycle and could have tried to escape on it.