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Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. This is so even though the intercourse may have occurred without the actual consent and against the actual will of the alleged victim. Thus it is that in the absence of actual force, unreasonable subjective fear of resisting cannot convert the conduct of the defendant from that which is non-criminal to that which is criminal.
Defendant Jay Goldberg was charged with rape of second degree. The 18-year-old prosecuting witness met the defendant at a clothing store where she worked as a part-time sales clerk. The defendant told her that he was a free-lance agent and that she was an excellent prospect to become a successful model. They then drove off in his car to a house the defendant said he was using for his "studio." At trial, the prosecuting witness testified that she removed her clothes when the defendant told her to do so because she "was really scared." She then testified that she kept telling the defendant that she wanted to go home and that she "didn't want to do this," but was "just really scared." They then had intercourse and the defendant drove the prosecutrix to her home. The defendant admitted having sexual relations with the prosecuting witness at the time and place alleged, but maintained that it was mutually consensual and that the prosecuting witness did not appear to be frightened at any time. Defendant was convicted. On appeal, defendant contended that the evidence was insufficient to sustain his conviction.
Was the evidence sufficient to sustain defendant’s conviction for rape of second degree?
The Court noted that under Md. Ann. Code art. 27, § 463, a person was guilty of rape in the second degree if the person engaged in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person. The Court further noted that force was an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. In the case at bar, the Court held that the evidence was legally insufficient to warrant a conclusion that defendant’s actions or words were reasonably calculated to create in the mind of the victim" a reasonable fear that if she had resisted he would have harmed her, or that, faced with such resistance, he would have used force to overcome it. Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse could not be rape.