Citation. 43 Md. App. 476, 406 A.2d 624,1979 Md. App. 398.
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Brief Fact Summary.
The Defendant, Edward Salvatore Rusk (Defendant) was convicted of second-degree rape. He took the victim’s car keys and escorted her to his apartment where they engaged in sexual intercourse.
Synopsis of Rule of Law.
The evidence required to support a rape conviction must warrant a conclusion either that the victim resisted and was overcome by force or the victim was prevented from resisting by threats to her safety.
The Defendant and the victim met at a bar. After a short conversation, the victim said that she was ready to leave and the Defendant asked for a ride home. The victim assented. She parked at the curb on the side of the street opposite the Defendant’s house but did not turn off the ignition. The Defendant then asked the victim to come up to his apartment and she refused. After more attempts to convince the victim to come upstairs, the defendant finally took the keys out of the car, walked over to the driver’s side, opened the door and asked if she would now come up. Finally, she assented to come up to his apartment. Once inside, the Defendant eventually turned off the light and asked the victim to get into bed with him. He pulled her onto the bed and began to remove her blouse. The victim removed her pants and his clothing because he asked her to. When he put his hands on the victim’s throat and lightly choked her, the victim asked if she did what the Defendant wanted would he
let her go. The Defendant said yes. The victim performed oral sex on the Defendant and they had sexual intercourse.
Was the amount of force used by the Defendant sufficient to support of conviction of rape?
No. The evidence required to support a rape conviction must warrant a conclusion either that the victim resisted and was overcome by force or the victim was prevented from resisting by threats to her safety. There was no testimony indicating the victim actively resisted the Defendant, nor was there evidence of fear that would overcome the victim’s attempt to resist or escape.
The judge and the jury, as those in the best position to observe witnesses and hear testimony, are in the best position to determine the sufficiency of the evidence. Here, the majority improperly substituted their judgment for the jury.
The force required for a rape conviction must either be actual or constructive. In the latter case, the victim must be so overcome by fear precipitated by threats to her safety she cannot resist.