¶ … Rape Case Law and Jurisprudence Panichas[footnoteRef:2] discriminated between aggravated rape and lesser offenses in a review of Stephen Schulhofer's book Unwanted Sex: The Culture of Intimidation and the Failure of Law. When the use of violence or its threat is used to overcome a victim's lack of consent, immediately before the assault, and this is clearly demonstrated by the evidence presented in court, then aggravated rape has occurred. If, however, victim nonconsent is questionable and the immediate use or threat of force is absent or ambiguous, then a rape conviction will not survive appeal in most states. As Panichas notes, rape jurisprudence has historically relied on common law and appellate decisions when judging whether allegations of rape have any merit and three criteria are prominent: (1) actual/credible use or threat of force, (2) force must be physical, and (3) nonconsent in the absence of force is insufficient to support a rape conviction. Add to these criteria the additional judicial habits and statutory requirements noted by Dressler[footnoteRef:3] and victims historically had little chance of success in court. Some of these requirements and courtroom hurdles include immediate notification of criminal justice authorities following the rape, warning juries that victims could be lying, requiring corroborating evidence of the victim's claim, and allowing defense attorneys to attack victim credibility and past sexual conduct. [2: George E. Panichas, Rape, Autonomy, and Consent, 35 Law & Soc. Rev. 231, 237-238, sect. V (2001).] [3: Joshua Dressler, Where We Have Been, and Where We Might Be Going: Some Cautionary Reflections on Rape Law Reform, The Sixty-Eighth Cleveland-Marshall Fund Lecture, 46 Clev. St. L. Rev. 409, 7-10 (1998). ]

I. State v. Alston

Both authors discuss the North Carolina Supreme Court ruling in State v. Alston[footnoteRef:4] to make their point. This case involved the victim alleging rape immediately after a sexual encounter with the defendant. A consensual relationship had existed for six months prior to the victim leaving to live with her mother, but the relationship had gradually become violent. A month after the victim moved out, she was confronted by the defendant at her school and forcibly removed from the premises. After walking together and talking, the victim informed the defendant that the relationship was over and the victim in turn claimed that she owed him one last sexual encounter. The two walked together to the house of a friend of the defendant, as they had done in the past, where the sexual encounter took place. The trial court convicted the defendant of kidnapping and rape, a conviction upheld by a state appeals court, but the state supreme court reversed both convictions. [4: 310 N.C. 399, 312 S.E.2d 470 (Sup. Ct. 1984); Panichas, supra note 1, at 239-240; Dressler, supra note 2, at 9-10.]

In Alston,[footnoteRef:5] the N.C. Supreme Court agreed that the victim was forcibly removed from the school premises against her will and threatened with physical harm, but the demand for sex was too far removed from this use of force for it to support a conviction of kidnapping with intent to commit a felony. After the defendant demanded one final sexual encounter the victim had at least two opportunities to flee: (1) while walking behind the defendant to the friend's house and (2) when the victim was left alone in the front of the house while the defendant and his friend were talking in the back of the house. For these reasons, the court overturned the conviction of kidnapping. The court then considered the rape conviction and noted that under North Carolina law, rape victims are not required to resist their assailants to obtain a conviction for this crime; however, evidence of both force and a lack of consent must be credibly presented during the trial. Since the use of force occurred much earlier than the demand for sex, the court concluded that force was not evident when the sexual encounter occurred. For this reason, the court also overturned the rape conviction.[footnoteRef:6] [5: 310 N.C. 399, 312 S.E.2d 470, 475 (Sup. Ct. 1984).] [6: Id. At 476.]

As noted by Panichas, rape is a criminal act of violence[footnoteRef:7] and therefore force and victim nonconsent are required before a conviction can be made. The prosecutors for the victim in Alston could have charged the defendant for a lesser crime, such as indecent assault, but they chose not to. In the absence of both force and nonconsent, the North Carolina Supreme Court had no other choice than to overturn the convictions given the rape laws in effect at the time. The average intelligent person...

Rape statutes and jurisprudence in 1984, however, could not base a rape conviction on a history of oppression that may have contributed to the victim's seeming complacency during the sexual assault. This would be equivalent to what Roberts called ". . . The latent threat of violence."[footnoteRef:8] [7: Panichas, supra note 1, at 241.] [8: Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 Chi.-Kent L. Rev. 359, 375 (1993).]
II. People v. Evans

A similar conclusion was reached by the New York State Supreme Court when it considered evidence used to obtain rape, sodomy, and unlawful imprisonment convictions against the defendant in People v. Evans.[footnoteRef:9] The victim, according to the court, had been seduced through fraudulent means into having sex with the defendant; however, under New York law the use of "… allurement, enticement, or persuasion, to overcome initial unwillingness or resistance" was not illegal.[footnoteRef:10] Although the defendant had made statements that could be construed as a threat and probably were by the victim, the court concluded that the intentions of the defendant were controlling and his intentions could not be determined conclusively in this case.[footnoteRef:11] In the absence of any other evidence for the use or threat of force immediately preceding the sexual encounter, such as bruises, scratches, and torn clothing,[footnoteRef:12] the court concluded that under current law the rape conviction could not be upheld. [9: 85 Misc.2d 1088, 379 N.Y.S.2d 912 (Sup. Ct. 1975).] [10: Id. At 915.] [11: Id. At 921.] [12: Id. At 917.]

An interesting aspect of the court's decision in Evans is the disgust the justices felt towards the defendant, expressing what seemed to be some measure of glee that the defendant was not successful in eluding all convictions the trial court administered. The defendant was convicted of criminal trespass in the second degree and escaping from a felony arrest in the second degree.[footnoteRef:13] The court's opinion of the fraudulent behavior exhibited by the defendant suggested the judges would have been happy to find some way to uphold the convictions under New York statutes, but given their understanding of the law and rape jurisprudence they were prevented them from upholding the convictions. Although the use of fraudulent means to coerce someone into sexual intercourse was criminalized by some states in recent years,[footnoteRef:14] in 1974 that was not the case. The New York judges therefore correctly applied the laws in effect at the time. [13: Id. At 922.] [14: Patricia J. Falk, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud, 123 Yale L.J. 353, 367-368 (2013).]

III. State v. Rusk

Another rape case involving an ambiguous use of force and inconsistent nonconsent by the victim was State v. Rusk.[footnoteRef:15] The victim gave the defendant a ride home from the bar, someone she did not really know, and ended up in the defendant's apartment where she claims she was raped by the defendant.[footnoteRef:16] Based on her testimony the defendant grabbed the keys from the ignition and refused to give them back unless she went with him to his apartment, despite repeatedly refusing his invitation. She admitted afterward that she had many options at that point, including blowing the horn, screaming, or fleeing to find help. The defendant claims he did not grab the keys and the victim only began to act as if she had been forced to have sex after the sexual encounter had occurred. The victim claims that throughout the ordeal the defendant acted in a threatening manner, which caused her to believe her life was in danger if she did not comply. The threatening behavior included grabbing her wrists to force here onto the bed and placing his hand on her throat.[footnoteRef:17] The jury and trial judge afforded the victim's testimony sufficient credibility and convicted the defendant of rape, despite claims by the defendant that she was a willing participant. [15: State v. Rusk. 289 Md. 230, 424 A.2d 720 (App. Ct. 1981).] [16: Id. At 233-234.] [17: Id. At 236.]

The conviction was appealed to a state appeals court and overturned because the judges believed the testimony of the victim was not credible enough to support the conviction.[footnoteRef:18] For example, the victim could have lied. The victim's credibility was also undermined by the fact that she gave a strange male a ride home…