ASSAULT WITH INTENT TO RAPE EVIDENCE.

1. In order to authorize a conviction for the offense of assault with intent to rape, the evidence must show, beyond all reasonable doubt, (1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female. If any of these three elements is lacking, the offense is not made out.

2. Difference in race and social standing may properly be considered in determining, in cases of the character above referred to, whether there was a purpose to carry into effect the intent to have carnal knowledge of the female forcibly and against her will.

3. The evidence in the present case did not authorize a conviction.

4. Evidence warranting a jury in finding that a negro man, who had concealed himself by the side of a public road at a lonely point thereon, and at a late hour in the afternoon, suddenly sprang up, with a pistol in his hand, and rudely accosted an unprotected white woman, who was passing the place, with the words, "I have got you where I have wanted you for a long time, " whereupon she immediately turned and fled, and he hotly pursued her, until she came within reach of aid, was sufficient to support a verdict of assault with intent to rape; and where such a verdict has been returned upon evidence of this character, and approved by the [34 S.E. 136] trial judge, the supreme court ought not to set it aside. Per Lumpkin, P. J., and Little, J., dissenting.

(Syllabus by the Court.)

Error from superior court, Carroll county; S. W. Harris, Judge.
Bob Dorsey was convicted of assault with intent to rape, and brings error. Reversed.

Reese & Gordon, for plaintiff in error.

T. A. Atkinson, Sol. Gen., and W. D. Hamrick, for the State.

COBB, J.

The accused was convicted of an assault with intent to rape, and made a motion for a new trial, based on the general grounds and newly-discovered evidence. The motion having been overruled, he excepted.

Taking the evidence in the record most strongly against the accused, it warranted a finding of the following facts: Mrs. Vines, a white woman, was walking alone along a public road in the country, leading from the home of her husband to that of her father-in-law, at a late hour in the afternoon. When she bad reached a lonely point on the road, not within view of any dwelling, the accused, a negro, suddenly sprang up from behind some bushes at the side of the road, with a pistol in his hand, and said to Mrs. Vines, "I have got you where I have wanted you for a long time." He was then some 20 or 25 yards distant from her. She immediately turned and fled, and the accused pursued her for a distance of 70 to 75 yards. He did not relinquish his pursuit until she came within sight of her husband, who was at work in a field near the roadside. The accused then turned, and ran off through the woods. He did not get nearer to Mrs. Vines than 10 or 15 yards, nor did he make any attempt to shoot or otherwise injure her with the pistol.

We do not think that the evidence warranted a conviction of the crime charged in the indictment. To make out a case of assault with intent to rape, it is absolutely essential that the evidence should show beyond a reasonable doubt (1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female. If any one of these three elements is lacking, the offense is not made out To constitute an assault, no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so. Thomas v. State, 99 Ga. 38, 26 S. E. 748. Do the facts of this case bring it within the rule above stated? They show, of course, an apparent ability to commit an injury upon the female, although the accused never got within striking distance; but it is doubtful if the bare fact that the accused ran after, but did not overtake, her, when he most probably could have done so, coupled with the language that he used, is sufficient to constitute an assault. True, he had a pistol in his hand, but it was never pointed at the female, nor is there the slightest circumstance, save the bare fact that he had the pistol exposed, to show an intention to use it. Without going more fully into this branch of the case, we content ourselves with saying that it is doubtful if an assault has been proven.

The main point upon which we place our judgment is that the evidence does not show an intention on the part of the accused to have carnal knowledge of Mrs. Vines forcibly and against her will. An intention to do any one of three things might be inferred from this evidence, rob, frighten, or rape, or there might have been some other motive for his conduct difficult to conjecture. It is not sufficient that the intent to do one may as likely be presumed as an intention to commit the others; but the question is, is the intention to commit the crime charged "more likely to be true than any other"? Carter v. State, 35 Ga. 263. Now, can it be said that this evidence points with a greater degree of certainty to an intention to commit rape than to any other act? The female was walking along the road in the daytime. Her husband was not more than 100 yards away, though it does not appear that the accused knew this. The accused was concealed behind some bushes along the side of the road. Instead of waiting until she approached near enough for him to place his hands upon her, and detain her, and stop any outcries she might make, he emerges from behind the bushes when she gets within 20 or 25 yards of him. Is this the conduct of a man who intends to commit a rape? He had a pistol in his hand, but showed no intention of using it. He said he had her where he had wanted her for a long time. He did not advance upon her until she. turned to run. He chased her 75 yards, and never came closer to her than 10 or 15 steps. Surely, if urged on by a desire to have carnal knowledge, and knowing full well that this purpose, if accomplished at all, must be accomplished speedily, he could have overtaken her before she emerged from the woods. If he did not desire to commit this offense, what was his desire? We do not know. Possibly to rob, possibly to frighten, possibly something else; but we are not willing to say that his conduct showed, beyond a reasonable doubt, that there was more of an intention to commit one than the other. And, if it points to one with as great a degree of certainty as another, that which is the least heinous will be presumed to have been intended. This follows logically from the presumption of innocence which the law raises in favor of a person charged with crime.

The fact that the alleged assailant is a negro may, in eases like the one now under consideration, be properly considered for one purpose, and that is to rebut any presumption that might otherwise arise in favor of the accused that his intention was to obtain the consent of the female, upon failure of which [34 S.E. 137] he would abandon his purpose to have sexual intercourse with her. Under the conditions surrounding the two races in this state, when, in the trial of a person charged with assault with intent to commit a rape, the only theory of the defense is that the accused intended to have sexual intercourse, but that it was his purpose to desist if he met with opposition, if the assailant is a negro, and the female is a white woman, such a theory will avail nothing, unless the evidence shows either that the female was not a virtuous woman, or that she had in some way encouraged the approaches of her assailant. The vital question, however, to be considered, is whether, under the circumstances of the particular case, a negro could reasonably be presumed to have thought that a white woman would consent to his lustful embraces, and no such inference will ever arise in his favor unless the circumstances are such that no other inference can be possibly drawn. The ruling in the case of Jackson v. State, 91 Ga. 322, 18 S. E. 132, is to the above effect, but it goes no further. No decision of this court has ever been made in which it was held that evidence of the character relied on for a conviction in the present case was sufficient to convict one of the offense for which the accused was charged. On the contrary, the decisions heretofore made tend to establish an opposite conclusion. In the case of Carter v. State, 35 Ga. 263, a negro was found in bed with a white girl, and when she awakened he had his hand on her arm. That this evidence makes a much stronger case than the present one cannot be doubted. In the Ware Case, 67 Ga. 349, a girl 12 years of age was on her way, late in the evening, to a neighbor's house, when suddenly the accused, who was a grown man and a stranger, rushed out from the woods, demanded to know her name and business, took hold of her hand, squeezed it, clasped his arm around her waist, raised her from the ground, and started to bear her to the woods, threatening her life, and, when she threatened him with her father, he suddenly dropped her on the ground and fled. The most reasonable inference from such conduct was that the accused intended to commit a rape, and every other reasonable hypothesis is excluded. In the Jackson Case, supra, the accused was found by a girl about 12 o'clock at night sitting on her bed, she having been awakened by his calling her name. She sprang up, calling her father, when the accused got off of her bed, touching or catching hold of her foot as he did so. Her father was sleeping in a room near by. Grave doubts were expressed by Chief Justice Bleckley in the opinion in that case as to whether the evidence was sufficient to uphold the verdict, but the conclusion was finally reached that it was. We are also extremely doubtful as to the correctness of this decision, but that an intent to ravish was more certainly indicated than in the present case cannot be questioned. The case of Sharpe v. State, 48 Ga. 16, is very similar to the Carter Case, supra, and, if anything, stronger than that case. In Joice v. State, 53 Ga. 50, the accused went into the kitchen where a female was washing dishes. As she started out of the door, he blew out the light, and caught her around the waist, but did not pull her to him. She called her father, who came. The kitchen was about 30 yards from the house. A conviction for assault with intent to rape was set aside, on the ground that no intention to commit the offense had been shown. It does not appear to what race either the accused or the female belonged. The conclusion reached, we think, was manifestly right; but if a jury could not find from that evidence that there was an intention to rape, without regard to the race of the participants, it is difficult to see how a conviction founded on such evidence as the present record discloses can be upheld. The case of Johnson v. State, 63 Ga. 355, is the strongest case on this line in our Reports. In that case Sarah Cole was awakened at night by having some one place his hand over her mouth. She threw up her hand, and felt the kinky hair of a negro, when he grabbed her by the feet, and pulled her to the door. She screamed, and he ran. Chief Justice Warner in the opinion said: "There is no evidence in the record that we can discover, either by the defendant's confessions or otherwise, that he attempted to have carnal knowledge of Sarah Cole, as alleged in the indictment." Surely, if that case be a precedent, the conviction in the present case ought not to stand. The case of Jackson v. State, supra, was followed in Darden v. State, 97 Ga. 407, 25 S. E. 676. Darden was a negro, and the person alleged to have been assaulted was a white girl of 20 years. She was sleeping in her bedroom, and was awakened about midnight by the cover moving on her bed. She did not rise immediately, and the cover moved twice more, when she screamed for her father. When she did this, the accused jumped out of the window, and ran away. The room was dark. That the purpose of the accused in that case was to commit the offense for which he was convicted can hardly be doubted. In Gaskin v. State, 105 Ga. 631, 31 S. E. 740, a negro boy 16 or 17 years of age concealed himself at night under the bed of a white girl about 14 years old. He was discovered in this position by the girl and her mother, and fled through a window and escaped. It was held that the element of assault was not proven, as no overt act amounting to an assault was shown, and that the evidence was not sufficient to warrant a finding that the accused had any intention of committing a rape upon the girl. In the opinion it is said that "there should be no reasonable doubt as to the specific intent of the accused, from the facts and circumstances proven." If it cannot be said to be the intention of a negro boy who goes into the room of a white girl, and conceals himself under her bed, and, when dis-[34 S.E. 138]covered, makes his escape, to commit a rape upon her, we cannot understand how the facts of the present case would justify a conviction for this offense.

We have been able to find but one decision in the United States where a conviction for assault with intent to commit a rape was upheld under facts similar to those disclosed by the record in the present case. State v. Neely, 74 N. C. 425. That decision was rendered by a bare majority of the court, two of the judges dissenting. Rodman, J., in his dissenting opinion, admits that, under a prior decision of that court, there was evidence from which the jury could have convicted the accused of a simple assault, but insists that there was no evidence of intent to commit the offense charged. We quote the following extract from that opinion as being peculiarly appropriate to our discussion: "But the method of reasoning [of the majority] is misleading and objectionable on principle. It assumes that the prisoner is a brute, or so like a brute that it is safe to reason from the one to the other; that he is governed by brutish, and, in his case, vicious, passions, unrestrained by reason or a moral sense. The assumption is unreasonaable and unjust. * * * Assume, as the opinion of the court does, that the inquiry as to intent is to be conducted upon an analogy from the intents of brutes, you treat him worse than a brute, because what would not be vicious or criminal in a brute is vicious and criminal in him, being a man. When you assume him to be a brute, you assume him to be one of vicious properties. If that be true, what need of court and jury? The prisoner is not only ferae natur, but caput lupinum, whom any one may destroy without legal ceremony. The evidence of the prisoner's intent is circumstantial; the circumstances being the pursuit, and its abandonment when he got in sight of White's house. It is the admitted rule in such cases that, if there be any reasonable hypothesis upon which the circumstances are consistent with the prisoner's innocence, the judge should direct an acquittal; for in such cases there is no positive proof of guilt. The particular criminal intent charged must be proved. It will not do to prove that the prisoner had that intent or some other, although the other may have been criminal; and especially if the other, although immoral, was not criminal." This decision was never followed by the supreme court of North Carolina, and was expressly overruled in the case of State v. Massey, 86 N. C. 658, where the dissenting opinion from which the above extract is taken was approved by a unanimous bench. In the case of House v. State, 9 Tex. App. 53, a conviction upon what seems to us to be stronger evidence than that of the present case was set aside, and that, too, in a state where the social status of the negro is the same as with us. It appears from the evidence in that case that Miss Coulter, a white woman, was wash ing clothes in a wash room, and that about half past 5 o'clock in the morning she went into the yard to get a bucket of water. Just as she dipped up the water and turned around she saw the accused, a negro, standing at the corner of the kitchen, which was in the same building as the wash room. He came straight towards her, until he got up close enough to take hold of her, when he reached out both hands, as though he would take her in his arms. The woman screamed, and accused went away. He did not put his hands or her, nor say anything, during the occurrence above detailed. It was ascertained that the window of the wash room had been raised, and a stick placed under it, before the meeting of the parties. It was held that the offense was not made out. In Jones v. State, 18 Tex. App. 485, it appeared that a white girl was walking from one village to another through the country. She passed a mill where the accused, a negro, was working. After passing the mill, she looked back, and discovered the negro in her wake. The accused came up with her, caught her by the heels, seized her with one hand by the throat, and threw her to the ground. She screamed out, and he seized her by the throat with both hands, choking her violently, and placed his knee on her breast. After the girl had screamed out, and the accused had choked her, he jumped up and ran off, without having made any attempt to raise the girl's clothing, or to do anything but throw her down and choke her. Notwithstanding the difference in race between the parties, the court held that "each and every fact is consistent with the commission of an aggravated assault and battery." See, also, Burney v. State, 21 Tex. App. 565, 1 S. W. 458; Thomas v. State, 16 Tex. App. 535. In Green v. State, 67 Miss. 356, 7 South. 326, the evidence showed that the prosecutrix was riding in the daytime, alone, on horseback, along a country road. When she reached a place where the road crossed the railroad, she noticed the accused, a negro man, standing on the crossing. After riding two or three hundred yards beyond the crossing, she noticed that the accused was following her on foot, evidently having traveled very briskly, and she had ridden but very little further when he came up behind her, and caught her riding skirt. She immediately uttered an outcry, and urged her horse forward, when the accused, without having spoken a word, fled in another direction. It was ruled that: "It is conjecture, and not an inference reasonably drawn from the evidence, that the defendant intended a rape, rather than robbery or murder. Mere probability of guilt of a particular crime, and that, too, springing more from instinct than from facts proved, cannot support a conviction." In this case you have a lonely country road, an unprotected white female, and a negro, not only pursuing, but actually coming up with, the woman, and putting his hands on her riding skirt. See, [34 S.E. 139] also, State v. Donovan, 61 Iowa, 369, 16 N. W. 206; Hairston v. Com. (),32 S. E. 797. Cases might be multiplied, but, of course, each case must rest upon its peculiar facts. Suffice it to say that we have found nowhere in the books, with the single exception of the North Carolina case, supra, any case which, in our opinion, is authority for upholding the conviction in the present case. We cannot bring our minds to the conclusion that the evidence in the present case showed, beyond all reasonable doubt, that the accused intended to have carnal knowledge of Mrs. Vines forcibly and against her will. One who frightens and chases along the public road an unprotected female should meet with proper punishment for such conduct, but we cannot say that such conduct alone authorizes a conviction of the offense with which the accused was charged in the present case.

Judgment reversed.

All the justices concurring, except LUMPKIN, P. J., and LITTLE, J., dissenting.

LUMPKIN, P. J. (dissenting).

The naked question is whether or not, upon the state of facts set forth at the beginning of the above opinion, the verdict should be upheld. Beyond doubt, the evidence was sufficient to establish the commission by the accused of an assault of some kind. Thomas v. State, 99 Ga. 38, 26 S. E. 748, and authorities there cited. In that case, which is in some respects similar to the one now before us, it was held: "Where one raised a stick in a striking position, and ran towards another person fifty yards distant, at the same time threatening to beat that person, and the latter fled, whereupon the pursuer, after getting within about half the above-mentioned distance of the pursued, abandoned the pursuit, it was, under all the circumstances, a question for determination by a jury whether or not there was an intention to strike, and, if so, whether or not it could probably have been accomplished if the pursuit had been continued. If there was such an intention, and an apparent ability to carry it into effect, the offense of an assault was committed, though there may not have been an actual ability to inflict the battery intended. If there was no intention to strike at all, or if there was no real or apparent ability to inflict a battery, there was no assault." The offense there charged was a simple assault, and the court, in effect, ruled that the intention to beat was inferable from evidence showing that a threat was made by the accused to the prosecutrix in the following language: "Confound your soul! If you don't like what I said, I will take this to your head, "he at the same time using an oath, raising a stick, and starting towards her. See page 41, 99 Ga., and page 749, 26 S. E. There was nothing In the present case to indicate an intention on the part of the accused to beat Mrs. Vines. He made no threat or effort to do so, nor was there any thing in his conduct tending to show that he had any such purpose. It could not have been an assault with intent to murder; for, if this had been the object of the accused, he would unquestionably have used the pistol. It was something more than a bare assault or wicked purpose to frighten, or the accused would scarcely have persisted in the pursuit of Mrs. Vines until it became evident that assistance was at hand. It must, then, have been either an assault with intent to rob or an assault with intent to rape. There is scarcely any reason for even supposing that the object which the accused had in view was robbery. He did not demand of her money or property of any kind. Neither his words nor his acts were those to be naturally expected of a highwayman seeking plunder. Moreover, the theory that a robbery was contemplated is, we think, effectually negatived by the character of the language used by him. In the case of Thomas v. State, cited supra, this court was of the opinion that the threat to beat indicated an intention to beat. The remark addressed to Mrs. Vines is of the very greatest importance in arriving at the intention of her assailant. His precise words were: "I have got you where I have wanted you for a long time." What could such a remark mean, addressed by a negro to an unprotected white woman, at the time and place, and under the circumstances, above detailed? The answer to this question necessarily embraced in the verdict is that the accused meant to ravish. Is that answer so unreasonable that a reviewing court can properly say it was unwarranted? We cannot, of course, know with absolute certainty what the accused did mean; but, after careful and thorough deliberation, we are not prepared to say that the jury were not justified in finding that he desired to have sexual intercourse with Mrs. Vines, and intended by the remark addressed to her to express the idea that he at last had her in his power and at his mercy, with a view to the accomplishment of this end. We do not feel justified in saying that the jury could not reasonably conclude that such was the true import of the words he used. If he meditated having carnal knowledge of her person, he could not possibly have believed she would consent, and therefore it must have been his purpose to accomplish his design forcibly and against her will. When we take into consideration the lonely place, the approaching nightfall, the fact that assistance was apparently remote, and also the immeasurable difference in the social standing of these parties, we cannot say the jury erred in their conclusion that a rape was intended.

The case of Ware v. State, 67 Ga. 349, is in many respects similar to that now under consideration, though there the evidence of the lustful intention of the accused was more apparent. Still, there was no positive evidence of an intention to rape. In commenting upon the question of the intent of the [34 S.E. 140] accused in that case, Justice Speer said (page 352): "In seeking the motives of human conduct, the jury need not stop where the proof ceases. Inferences and deductions from human conduct are proper to be considered, where they flow naturally from the facts proved. And such conduct as this points with reasonable, if not with unerring, certainty to the lawless intent he had in view." And see, also, Jackson v. State, 91 Ga. 322, 18 S. E. 132, where a conviction of assault with intent to rape was upheld, although it was, in the opinion of this court, after long and anxious consideration, "a case on which the jury might well have doubted whether the accused intended to ravish, " but in which the conclusion was finally reached that there was sufficient evidence to sustain a finding that his purpose was to commit a rape. This was a case, too, in which was distinctly recognized the doctrine that difference in race and social standing might be considered in arriving at the intention of the accused.

This court cannot, consistently with the purposes of its organization, or with the precedents almost without number which it has itself established, set aside verdicts merely because there may be some ground for doubting their correctness. It is possible that Mrs. Vines may have been mistaken as to the identity of her assailant, and in this connection the jury, had they seen proper so to do, might have given more weight to the testimony relating to the defense of alibi which was set up. Again, they might have had a doubt as to the intention with which the assault was made. They were, however, the exclusive and legally appointed judges of all the issues and inferences of fact involved in the case, and this court has no authority to usurp their function. Granting the existence of room for doubt on the questions both of identity and intention, we do not think this verdict ought to be disturbed. As a pointed instance among the hundreds which could be cited of the steadfastness with which this court has adhered to its duty of declining to interfere with the findings of juries supported by evidence and approved by the trial judges, we quote from Chief Justice Bleckley in Railroad Co. v. Howard, 79 Ga. 54, 55, 3 S. E. 429. After intimating his own view of what the verdict in that case should have been, he said: "The jury have found to the contrary, and the court below, who was near to them. nearer to the case than we are, upheld their finding; and, because we are constrained by the law (for all the members of the court share in the doubt), we affirm the judgment. As matter of stern legal duty, this court yields its strong doubts to the correctness of the verdict."

The verdict in the present case comes here with the sanction of the trial judge's approval, and there was, in our judgment, enough evidence to warrant it. The opinion of the court, delivered by Mr. Justice COBB, is able and strong, but it does not convince us that the majority have reached the correct conclusion. None of the cases cited by him, whether decided by this court or in other jurisdictions, can be fairly regarded as binding authority in the case before us. They only resemble it in greater or less degree, and the reasoning from them is merely by analogy. Every case must, at last, be considered and determined upon its own facts. We venture, without fear of contradiction, the assertion that, if a statement of the facts proved in this case should be made to 1, 000 upright, intelligent, and fair-minded citizens of this state, taking them as they came, at least 900 of them would say they believed the accused intended to rape Mrs. Vines. Indeed, this is the very first idea that would occur to almost any mind, upon being informed of what he did. It does not, of course, follow that the accused ought to have been convicted; but, as he was convicted, how can a verdict which accords with common experience, and with the view which would naturally be entertained of it by good men, be so unreasonable as to require a reviewing court to set it aside? We are strengthened in our dissent from the judgment of the court by the fact that this particular verdict was upheld by one of the ablest, best, and most fearless judges who ever sat upon the bench of this or any other state. The finding of the jury was satisfactory to him, and we honestly believe it ought to be to this court.

The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

Stephen H. Sachs, Attorney General, with whom were Deborah K. Handel and Kathleen M. Sweeney, Assistant Attorneys General, on the brief, for appellant.

Ira C. Cooke, with whom were Melnicove, Kaufman & Weiner, P.A. on the brief, for appellee.

MURPHY, C.J., delivered the opinion of the Court. SMITH, DIGGES and COLE, JJ., dissent. COLE, J., filed a dissenting Opinion at page 247 infra, which SMITH and DIGGES, JJ., concur.

Edward Rusk was found guilty by a jury in the Criminal [232] Court of Baltimore (Karwacki, J. presiding) of second degree rape in violation of Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 463 (a) (1), which provides in pertinent part:

"A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person; ...." 

On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction; it concluded by an 8 — 5 majority that in view of the prevailing law as set forth in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury. Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979). We granted certiorari to consider whether the Court of Special Appeals properly applied the principles of Hazel in determining that insufficient evidence had been produced to support Rusk's conviction.

At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.

The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E.J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily [233] interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.

Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "`I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "`Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.

Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "`Now, will you come up?'" Pat explained her subsequent actions:

"At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.

"Now, I know that I should have blown the horn. I should have run. There were a million things I [234] could have done. I was scared, at that point, and I didn't do any of them."

Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said `Come on up, come on up;' and when he took the keys, I knew that was wrong."

It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "`Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.

Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:

"I was still begging him to please let, you know, let me leave. I said, `you can get a lot of other girls down there, for what you want,' and he just kept saying, `no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, `If I do what you want, will you let me go without killing me?' [235] Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, `If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."

Pat testified that Rusk made her perform oral sex and then vaginal intercourse.

Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "`Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, `Yes;' and he asked me for my telephone number; and I said, `No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.

On her way home, Pat stopped at a gas station, went to the ladies room, and then drove "pretty much straight home and pulled up and parked the car." At first she was not going to say anything about the incident. She explained her initial reaction not to report the incident: "I didn't want to go through what I'm going through now [at the trial]." As she sat in her car reflecting on the incident, Pat said she began to "wonder what would happen if I hadn't of done what he wanted me to do. So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car." She reported the incident to the police at about 3:15 a.m. Subsequently, Pat took the police to Rusk's apartment, which she located without any great difficulty.

Pat's girlfriend Terry corroborated her testimony concerning the events which occurred up to the time that Pat left the bar with Rusk. Questioned about Pat's alcohol consumption, Terry said she was drinking screwdrivers that night but normally did not finish a drink. Terry testified about her acquaintanceship with Rusk: "I knew his face, and his first name, but I honestly couldn't tell you — apparently I ran into him sometime before. I couldn't tell you how I know him. I don't know him very well at all."

[236] Officer Hammett of the Baltimore City Police Department acknowledged receiving Pat's rape complaint at 3:15 a.m. on September 22, 1977. He accompanied her to the 3100 block of Guilford Avenue where it took Pat several minutes to locate Rusk's apartment. Officer Hammett entered Rusk's multi-dwelling apartment house, which contained at least six apartments, and arrested Rusk in a room on the second floor.

Hammett testified that Pat was sober, and she was taken to City Hospital for an examination. The examination disclosed that seminal fluid and spermatazoa were detected in Pat's vagina, on her underpants, and on the bed sheets recovered from Rusk's bed.

At the close of the State's case-in-chief, Rusk moved for a judgment of acquittal. In denying the motion, the trial court said:

"There is evidence that there is a taking of automobile keys forcibly, a request that the prosecuting witness accompany the Defendant to the upstairs apartment. She described a look in his eye which put her in fear.

"Now, you are absolutely correct that there was no weapon, no physical threatening testified to. However, while she was seated on a chair next to the bed, the Defendant excused himself, and came back in five minutes; and then she testifies, he pulled her on to the bed by reaching over and grabbing her wrists, and/or had her or requested, that she disrobe, and assist him in disrobing.

"Again, she said she was scared, and then she testified to something to the effect that she said to him, she was begging him to let her leave. She was scared. She started to cry. He started to strangle her softly she said. She asked the Defendant, that if she'd submit, would he not kill her, at which point he indicated that he would not; and she performed oral sex on him, and then had intercourse."

[237] Rusk and two of his friends, Michael Trimp and David Carroll, testified on his behalf. According to Trimp, they went in Carroll's car to Buggs' bar to dance, drink and "tr[y] to pick up some ladies." Rusk stayed at the bar, while the others went to get something to eat.

Trimp and Carroll next saw Rusk walking down the street arm-in-arm with a lady whom Trimp was unable to identify. Trimp asked Rusk if he needed a ride home. Rusk responded that the woman he was with was going to drive him home. Trimp testified that at about 2:00 — 2:30 a.m. he returned to the room he rented with Rusk on Guilford Avenue and found Rusk to be the only person present. Trimp said that as many as twelve people lived in the entire building and that the room he rented with Rusk was referred to as their "pit stop." Both Rusk and Trimp actually resided at places other than the Guilford Avenue room. Trimp testified that there was a telephone in the apartment.

Carroll's testimony corroborated Trimp's. He saw Rusk walking down the street arm-in-arm with a woman. He said "[s]he was kind of like, you know, snuggling up to him like.... She was hanging all over him then." Carroll was fairly certain that Pat was the woman who was with Rusk.

Rusk, the 31-year-old defendant, testified that he was in the Buggs Tavern for about thirty minutes when he noticed Pat standing at the bar. Rusk said: "She looked at me, and she smiled. I walked over and said, hi, and started talking to her." He did not remember either knowing or speaking to Terry. When Pat mentioned that she was about to leave, Rusk asked her if she wanted to go home with him. In response, Pat said that she would like to, but could not because she had her car. Rusk then suggested that they take her car. Pat agreed and they left the bar arm-in-arm.

Rusk testified that during the drive to her apartment, he discussed with Pat their similar marital situations and talked about their children. He said that Pat asked him if he was going to rape her. When he inquired why she was asking, Pat said that she had been raped once before. Rusk expressed his sympathy for her. Pat then asked him if he [238] planned to beat her. He inquired why she was asking and Pat explained that her husband used to beat her. Rusk again expressed his sympathy. He testified that at no time did Pat express a fear that she was being followed by her separated husband.

According to Rusk, when they arrived in front of his apartment Pat parked the car and turned the engine off. They sat for several minutes "petting each other." Rusk denied switching off the ignition and removing the keys. He said that they walked to the apartment house and proceeded up the stairs to his room. Rusk testified that Pat came willingly to his room and that at no time did he make threatening facial expressions. Once inside his room, Rusk left Pat alone for several minutes while he used the bathroom down the hall. Upon his return, he switched the light on but immediately turned it off because Pat, who was seated in the dark in a chair next to the bed, complained it was too bright. Rusk said that he sat on the bed across from Pat and reached out

"and started to put my arms around her, and started kissing her; and we fell back into the bed, and she — we were petting, kissing, and she stuck her hand down in my pants and started playing with me; and I undid her blouse, and took off her bra; and then I sat up and I said `Let's take our clothes off;' and she said, `Okay;' and I took my clothes off, and she took her clothes off; and then we proceeded to have intercourse."

Rusk explained that after the intercourse, Pat "got uptight."

"Well, she started to cry. She said that — she said, `You guys are all alike,' she says, `just out for,' you know, `one thing.'

"She started talking about — I don't know, she was crying and all. I tried to calm her down and all; and I said, `What's the matter?' And she said, that she just wanted to leave; and I said, `Well, okay;' [239] and she walked out to the car. I walked out to the car. She got in the car and left."

Rusk denied placing his hands on Pat's throat or attempting to strangle her. He also denied using force or threats of force to get Pat to have intercourse with him.

In reversing Rusk's second degree rape conviction, the Court of Special Appeals, quoting from Hazel, 221 Md. at 469, noted that:

"Force is an essential element of the crime [of rape] 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." 

Writing for the majority, Judge Thompson said:

"In all of the victim's testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that `the way he looked' fails utterly to support the fear required by Hazel." 43 Md. App. at 480. 

The Court of Special Appeals interpreted Hazel as requiring a showing of a reasonable apprehension of fear in instances where the prosecutrix did not resist. It concluded:

"we find the evidence legally insufficient to warrant a conclusion that appellant's words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of `the look in his eyes.' After both were undressed and in the bed, and [240] she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the `lightly choking' could have been a heavy caress. We do not believe that `lightly choking' along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape." Id. at 484.

In argument before us on the merits of the case, the parties agreed that the issue was whether, in light of the principles of Hazel, there was evidence before the jury legally sufficient to prove beyond a reasonable doubt that the intercourse was "[b]y force or threat of force against the will and without the consent" of the victim in violation of Art. 27, § 463 (a) (1). Of course, due process requirements mandate that a criminal conviction not be obtained if the evidence does not reasonably support a finding of guilt beyond a reasonable doubt. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, as the Supreme Court made clear in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the reviewing court does not ask itself whether it believes that the evidence established guilt beyond a reasonable doubt; rather, the applicable standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319 (emphasis in original).

The vaginal intercourse once being established, the remaining elements of rape in the second degree under § 463 (a) (1) are, as in a prosecution for common law rape (1) force — actual or constructive, and (2) lack of consent. The terms in § 463 (a) (1) — "force," "threat of force," "against the will" and "without the consent" — are not defined in the statute, but are to be afforded their "judicially determined meaning" as applied in cases involving common law rape. [241] See Art. 27, § 464E.^[1] In this regard, it is well settled that the terms "against the will" and "without the consent" are synonymous in the law of rape.^[2]

Hazel, which was decided in 1960, long before the enactment of § 463 (a) (1), involved a prosecution for common law rape, there defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." 221 Md. at 468-69. The evidence in that case disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The Court said that the issue before it was whether "the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law." Id. at 468. It was in the context of this evidentiary background that the Court set forth the principles of law which controlled the [242] disposition of the case. It recognized that force and lack of consent are distinct elements of the crime of rape. It said:

"Force is 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. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id. at 469.

As to the element of lack of consent, the Court said in Hazel:

"[I]t is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent." Id.

The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear. The degree of fear necessary to obviate the need to prove resistance, and thereby establish lack of consent, was defined in the following manner:

"The kind of fear which would render resistance by a woman unnecessary to support a conviction of [243] rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist." Id. at 470.

Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and nonconsent, particularly when a threat rather than actual force is involved.

The Court noted in Hazel that the judges who heard the evidence, and who sat as the trier of fact in Hazel's non-jury case, had concluded that, in light of the defendant's acts of violence and threats of serious harm, there existed a genuine and continuing fear of such harm on the victim's part, so that the ensuing act of sexual intercourse under this fear "`amounted to a felonious and forcible act of the defendant against the will and consent of the prosecuting witness.'" In finding the evidence sufficient to sustain the conviction, the Court observed that "[t]he issue of whether the intercourse was accomplished by force and against the will and consent of the victim was one of credibility, properly to be resolved by the trial court." 221 Md. at 470.

Hazel did not expressly determine whether the victim's fear must be "reasonable." Its only reference to reasonableness related to whether "the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm...." 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious [244] bodily harm would suffice. The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.^[3] We think that, generally, this is the correct standard.

As earlier indicated, the Court of Special Appeals held that a showing of a reasonable apprehension of fear was essential under Hazel to establish the elements of the offense where the victim did not resist. The Court did not believe, however, that the evidence was legally sufficient to demonstrate the existence of "a reasonable fear" which overcame Pat's ability to resist. In support of the Court's conclusion, Rusk maintains that the evidence showed that Pat voluntarily entered his apartment without being subjected to a "single threat nor a scintilla of force"; that she made no effort to run away nor did she scream for help; that she never exhibited a will to resist; and that her subjective reaction of fear to the situation in which she had voluntarily placed herself was unreasonable and exaggerated. Rusk claims that his acts were not reasonably calculated to overcome a will to resist; that Pat's verbal resistance was not resistance within the contemplation of Hazel; that his alleged menacing look did not constitute a threat of force; and that even had he pulled Pat to the bed, and lightly choked her, as she claimed, [245] these actions, viewed in the context of the entire incident — no prior threats having been made — would be insufficient to constitute force or a threat of force or render the intercourse nonconsensual.

We think the reversal of Rusk's conviction by the Court of Special Appeals was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had "trampled upon the first principle of appellate restraint ... [because it had] substituted [its] own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury ... [and had thereby] improperly invaded the province allotted to those tribunals." 43 Md. App. at 484-85. In view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); State v. Baldwin, 571 S.W.2d 236 (Mo. 1978); People v. Yannucci, 283 N.Y. 546, 29 N.E.2d 185 (1940); Schrum v. Commonwealth, 246 S.E.2d 893 (Va. 1978); Tryon v. State, 567 P.2d 290 (Wyo. 1977). The principle of these cases was applied in Giles v. State, 229 Md. 370, 382, 183 A.2d 359 (1962), a common law rape prosecution involving conflicting evidence as to the use of force and lack of consent, where the Court concluded that the question "whether the intercourse had been consented to or had been accomplished by force, was clearly one to be resolved by the trier of facts." Johnson v. State, 232 Md. 199, 192 A.2d 506 (1963), another rape case, is to the same effect. Applying the constitutional standard of review articulated in Jackson v. Virginia, supra, i.e. — whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt — it is readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. Of course, it was for the jury to observe the witnesses and their demeanor, and to judge their credibility and weigh their testimony. Quite obviously, the [246] jury disbelieved Rusk and believed Pat's testimony. From her testimony, the jury could have reasonably concluded that the taking of her car keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was not familiar; that after Pat had repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared that Rusk intended to rape her; that unable to think clearly and believing that she had no other choice in the circumstances, Pat entered Rusk's apartment; that once inside Pat asked permission to leave but Rusk told her to stay; that he then pulled Pat by the arms to the bed and undressed her; that Pat was afraid that Rusk would kill her unless she submitted; that she began to cry and Rusk then put his hands on her throat and began "`lightly to choke'" her; that Pat asked him if he would let her go without killing her if she complied with his demands; that Rusk gave an affirmative response, after which she finally submitted.

Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel, supra; Dumer v. State, 64 Wis.2d 590, 219 N.W.2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v. Benavidez, 63 Cal. Rptr. 357, 255 C.A.2d 563 (1967); State v. Douglas, 256 La. 572, 237 So.2d 382, death sentence vacated, 408 U.S. 937, 92 S.Ct. 2864, 33 L.Ed.2d 756 (1970); State v. Bouldin, 153 Mont. 276, 456 P.2d 830 (1969); Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980). That a victim did not scream out for help or attempt to escape, while bearing on the question of consent, is unnecessary where she is restrained by fear of violence. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); Holland v. State, 356 N.E.2d 686 (Ind. App. 1976); State v. Stevenson, 195 N.W.2d 358 (Iowa 1972).

Considering all of the evidence in the case, with particular focus upon the actual force applied by Rusk to Pat's neck, we conclude that the jury could rationally find that the essential [247] elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.

Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that it affirm the judgment of the Criminal Court of Baltimore; costs to be paid by the appellee.

Cole, J., dissenting:

I agree with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape. I, therefore, respectfully dissent.

The standard of appellate review in deciding a question of sufficiency, as the majority correctly notes, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, it is equally well settled that when one of the essential elements of a crime is not sustained by the evidence, the conviction of the defendant cannot stand as a matter of law.

The majority, in applying this standard, concludes that "[i]n view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine." In so concluding, the majority has skipped over the crucial issue. It seems to me that whether the prosecutrix's fear is reasonable becomes a question only after the court determines that the defendant's conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist. In other words, the fear must stem from his articulable conduct, and equally, if not more importantly, [248] cannot be inconsistent with her own contemporaneous reaction to that conduct. The conduct of the defendant, in and of itself, must clearly indicate force or the threat of force such as to overpower the prosecutrix's ability to resist or will to resist. In my view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.

This Court defined rape in Hazel v. State, 221 Md. 464, 468-69, 157 A.2d 922 (1960), as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." The Court went on to declare that "[f]orce is 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." 221 Md. at 469. We noted that "no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances." Id. However, we hastened to add that "[i]f the acts and threats of the defendant [are] reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she [is] placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id.

To avoid any confusion about the substantive law to be applied, we further stated in Hazel that while

[t]he authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent ... the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or so terrified by threats as to overcome her will to resist. [221 Md. at 469-70.]

[249] By way of illustration, we cited certain cases. In State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946), the victim and her friend, Straughan, were riding in a car which stalled and could not be started again even with the help of the defendants, who were strangers. One of the defendants persuaded Straughan to accompany him down the road to get a chain for the purpose of towing the car. After Straughan and one defendant left, the other three forcibly took the victim from her car into an unfinished house, a block away, and each had intercourse with her. The victim did not object to intercourse with the three defendants because she was frightened and afraid they would kill her. In addition, it was plainly a jury question whether the prosecutrix was "[i]n such place and position that resistance would have been useless." 40 S.E.2d at 625 (quoting Mills v. United States, 164 U.S. 644, 649, 17 S.Ct. 210, 41 L.Ed. 584 (1879)).

In State v. Dill, 3 Terry 533, 40 A.2d 443 (Del. 1944), the State produced evidence to show that the victim, her husband, and two children were impeded in their return home when their automobile stalled on the highway near a tavern. The husband got out and began walking home for gas, leaving his wife and two children in the car. Sometime later, the defendant happened upon the scene and induced the wife to let him take her in his automobile for the purpose of overtaking her husband along the road. Instead, the defendant drove his car off the highway into a private lane. When the car stopped, the wife got out of the car and attempted to flee but was overtaken by the defendant who on the grass plot between the two highway lanes had sexual intercourse with her.

The trial judge, in submitting the case to the jury, instructed them, in part, as follows:

In the absence of excusing circumstances it must be shown that the woman did resent the attack made upon her in good faith and without pretense, with an active determination to prevent the violation of her person, and was not merely passive and perfunctory in her resistance. [40 A.2d at 445.] [Emphasis supplied.]

[250] In State v. Hoffman, 228 Wis. 235, 280 N.W. 357 (1938), the complaining witness entered the defendant's car under friendly circumstances and was driven out into the country without protest. When the defendant made his advances she shouted she was going home, pulled away from him and ran. He caught up with her and there was a tussle; she fell and tried to kick him. Again she ran and he caught her and said "if you run again I will choke you and throw you in the ditch...." 280 N.W. at 360. After that she walked with him back to the car. He did not order her to get in, but begged her. No force was used thereafter. Finally, she consented and acquiesced in the events which followed. At trial the complainant testified she was terribly frightened. Nevertheless the court concluded:

Suffice it to say that we have painstakingly read and re-read her testimony with the result that in our opinion it falls far short of proving that resistance which our law requires, unless her failure to resist was excused because of a fear of death or of great bodily harm or unless she was so terrified as to be unable to resist the defendant. It is apparently conceded by the State that her resistance was insufficient to prove the crime of rape unless her acquiescence or submission to the defendant was the result of that fear which our settled rules require. From the testimony of the complaining witness, it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof and that she was in no reasonable sense dominated by that fear which excused the "utmost resistance" within her power.

While the evidence is well calculated to arouse keen indignation against the defendant who so persistently and importunately pursued the complaining witness, who at that time was a virgin, it falls short, in our opinion, of proving a case of rape. [280 N.W. at 360-361.]

[251] In Selvage v. State, 148 Neb. 409, 27 N.W.2d 636 (1947), an 18-year-old woman went to a dance with her brother and later decided to go to a cafe with the defendants and some other acquaintances. They drove to a ball park several blocks away where she and the defendant and another got out. The others in the car drove away. She and the two males walked about a block into the park; she refused their advances for intercourse. She claimed they threw her to the ground, held her while they took turns having sexual intercourse. While this was going on a car with its lights on drove up and the two young men hurried some distance away from her. She made no outcry, nor attempted to communicate with the people in this car. Later at a different place in the park, she claimed each had intercourse with her again. The three walked back to the cafe, drank coffee, and waited to get a car to take them to the city near her home. When they finally got a car, she testified the two repeated the acts of intercourse with her. She resisted but made no complaint to those riding in the front seat. When she got home she related to her parents what had happened.

The Supreme Court of Nebraska, in holding the evidence insufficient to convict for rape, said:

Resistance or opposition by mere words is not enough; the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman. She must resist the consummation of the act, and her resistance must not be a mere pretense, but must be in good faith, and must persist until the offense is consummated. [27 N.W.2d at 637.]

In Kidd v. State, 97 Okla. Crim. 415, 266 P.2d 992 (1953), the rape took place in a car in an isolated spot. One assailant in that case told the victim that if she did not shut up he would kill her with a beer bottle. "By the time [the defendant] took over," the court concluded, "this victim was whipped down and demoralized." 266 P.2d at 1001.

These cases make plain that Hazel intended to require clear and cognizable evidence of force or the threat of force [252] sufficient to overcome or prevent resistance by the female before there would arise a jury question of whether the prosecutrix had a reasonable apprehension of harm.^[*] The majority today departs from this requirement and places its imprimatur on the female's conclusory statements that she was in fear, as sufficient to support a conviction of rape.

It is significant to note that in each of the fourteen reported rape cases decided since Hazel, in which sufficiency of the evidence was the issue, the appellate courts of this State have adhered to the requirement that evidence of force or the threat of force overcoming or preventing resistance by the female must be demonstrated on the record to sustain a conviction. In two of those cases, Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, certiorari dismissed as improvidently granted, September 18, 1979, and Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970), the convictions were reversed by the Court of Special Appeals. Goldberg concerned a student, professing to be a talent agent, who lured a young woman to an apartment upon the pretext of offering her a modeling job. She freely accompanied him, and though she protested verbally, she did not physically resist his advances. The Court of Special Appeals held:

The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant's advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be "the equivalent of force". (Hazel v. State, supra, at 469.) 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. [41 Md. App. at 69.] [Footnote omitted.]

[253] In Winegan, the appellant's conviction was reversed because, although the prosecutrix accompanied him to a boarding house and had sexual intercourse only because she thought he had a gun, he in fact had no gun nor at any time claimed to have one. It was on this basis, coupled with the facts that (1) the complainant at no time made outcry and (2) she followed him up the steps to his room, that the court concluded that her fear, if actually present, was so unreasonable as to preclude a conviction for rape.

Of the other twelve cases, four from this Court, not one contains the paucity of evidence regarding force or threat of force which exists in the case sub judice. In Johnson, Jr. v. State, 232 Md. 199, 192 A.2d 506 (1963), the court stated that although there was some evidence tending to indicate consent, which, standing alone, might have justified a judgment of acquittal, there was also evidence of violent acts and verbal threats on the part of the appellant, which, if believed, would have been the equivalent of such force as was reasonably calculated to create the apprehension of imminent bodily harm which could have impaired or overcome the victim's will to resist. In that case, the court related:

The acts alluded to took place at the parked car. The jury had testimony before it that obscene remarks and threats were directed to her and [her companion] while they were locked in the car, and that rocks were thrown at the windows, breaking them. [The prosecutrix] testified that one of the three men suggested shooting [her companion]. The victim may have submitted to sexual relations but that does not necessarily imply consent. [232 Md. at 204.]

In Thompson v. State, 230 Md. 113, 186 A.2d 461 (1962), the victim was murdered and there was no question whether the act had been accomplished by force. The woman died as a result of injuries she sustained.

In Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 [254] (1963), as in Johnson, there was some evidence tending to indicate consent, "[b]ut there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force...." 229 Md. at 381.

In Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960), as in Thompson, the victims were killed in the attempt or perpetration of rape.

In Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980), the Court of Special Appeals upheld a rape conviction in a case in which the victim was physically harmed in the assault. She "received substantial injuries to her genital area, requiring as noted, surgical suturing. This was force, raw, actual force; unnecessary force; force beyond that normally involved in completing the coital act." 45 Md. App. at 70 (emphasis supplied). In addition, the assailant made "pointed and repeated reference to having a knife, [which,] under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in [the victim's] mind a real apprehension of serious and imminent bodily injury if she did not comply...." 45 Md. App. at 70-71. At the time, the court concluded, the victim was absolutely helpless.

In Briscoe v. State, 40 Md. App. 120, 388 A.2d 153, cert. denied, 283 Md. 730 (1978), the facts were similar to those in Hazel. The assailant broke into the victim's home, pointed a shotgun at her and tied her up.

In Dove v. State, 33 Md. App. 601, 365 A.2d 1009 (1976), "the victim tried to run, but was leaped upon and smothered when she fell. There [was] nothing to indicate she would not have been injured more substantially if she had continued to resist his advances." 33 Md. App. at 617.

Along the same lines was Burnette v. State, 15 Md. App. 371, 290 A.2d 816 (1972). The victim "was alone with appellant who in a lonely spot assaulted and beat her." 15 Md. App. at 377. And in Coward v. State, 10 Md. App. 127, 268 A.2d 508, cert. denied, 259 Md. 730 (1970), the victim was driven to a wooded area by two men, and the driver threatened to break her neck.

[255] In Rice v. State, 9 Md. App. 552, 267 A.2d 261, cert. denied, 259 Md. 735 (1970), it was explained: "Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter." 9 Md. App. at 560.

And in Walter v. State, 9 Md. App. 385, 264 A.2d 882, cert. denied, 258 Md. 731 (1970), and Lucas v. State, 2 Md. App. 590, 235 A.2d 780, cert. denied, 249 Md. 732 (1968), the circumstances were also persuasive to show fear induced by force or threats. In Walter a police officer subdued a woman who, realizing he had a gun, became hysterical. She was also afraid of his abrupt tone of voice. The court concluded that it was "apparent the accused deliberately placed the victim in a situation where she would be afraid, with the expectation she would thereby yield to his lustful demands without physical resistance." 9 Md. App. at 395. In Lucas the perpetrator threatened the victim and her four infant children with a knife.

In each of the above 12 cases there was either physical violence or specific threatening words or conduct which were calculated to create a very real and specific fear of immediate physical injury to the victim if she did not comply, coupled with the apparent power to execute those threats in the event of non-submission.

While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance. She may not simply say, "I was really scared," and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist. She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. The law [256] regards rape as a crime of violence. The majority today attenuates this proposition. It declares the innocence of an at best distraught young woman. It does not demonstrate the defendant's guilt of the crime of rape.

My examination of the evidence in a light most favorable to the State reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be so fearful that she should fail to resist and thus, the element of force is lacking in the State's proof.

Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances. They drink and talk together. She agrees to give him a ride home in her car. When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses. According to her testimony he takes her keys, walks around to her side of the car, and says "Now will you come up?" She answers, "yes." The majority suggests that "from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar...." But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above. How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm? There was no weapon, no threat to inflict physical injury.

She also testified that she was afraid of "the way he looked," and afraid of his statement, "come on up, come on up." But what can the majority conclude from this statement coupled with a "look" that remained undescribed? There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination.

After reaching the room she described what occurred as follows:

[257] I was still begging him to please let, you know, let me leave. I said, "you can get a lot of other girls down there, for what you want," and he just kept saying, "no," and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, "If I do what you want, will you let me go without killing me?" Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat and started lightly to choke me; and I said "If I do what you want, will you let me go?" And he said, yes, and at that time, I proceeded to do what he wanted me to.

The majority relies on the trial court's statement that the defendant responded affirmatively to her question "If I do what you want, will you let me go without killing me?" The majority further suggests that the jury could infer the defendant's affirmative response. The facts belie such inference since by the prosecutrix's own testimony the defendant made no response. He said nothing!

She then testified that she started to cry and he "started lightly to choke" her, whatever that means. Obviously, the choking was not of any persuasive significance. During this "choking" she was able to talk. She said "If I do what you want will you let me go?" It was at this point that the defendant said yes.

I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse. In the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, I find it difficult to understand how a victim could participate in these sexual activities and not be willing.

What was the nature and extent of her fear anyhow? She herself testified she was "fearful that maybe I had someone following me." She was afraid because she didn't know him [258] and she was afraid he was going to "rape" her. But there are no acts or conduct on the part of the defendant to suggest that these fears were created by the defendant or that he made any objective, identifiable threats to her which would give rise to this woman's failure to flee, summon help, scream, or make physical resistance.

As the defendant well knew, this was not a child. This was a married woman with children, a woman familiar with the social setting in which these two actors met. It was an ordinary city street, not an isolated spot. He had not forced his way into her car; he had not taken advantage of a difference in years or any state of intoxication or mental or physical incapacity on her part. He did not grapple with her. She got out of the car, walked with him across the street and followed him up the stairs to his room. She certainly had to realize that they were not going upstairs to play Scrabble.

Once in the room she waited while he went to the bathroom where he stayed for five minutes. In his absence, the room was lighted but she did not seek a means of escape. She did not even "try the door" to determine if it was locked. She waited.

Upon his return, he turned off the lights and pulled her on the bed. There is no suggestion or inference to be drawn from her testimony that he yanked her on the bed or in any manner physically abused her by this conduct. As a matter of fact there is no suggestion by her that he bruised or hurt her in any manner, or that the "choking" was intended to be disabling.

He then proceeded to unbutton her blouse and her bra. He did not rip her clothes off or use any greater force than was necessary to unfasten her garments. He did not even complete this procedure but requested that she do it, which she did "because he asked me to." However, she not only removed her clothing but took his clothes off, too.

Then for a while they lay together on the bed kissing, though she says she did not return his kisses. However, without protest she then proceeded to perform oral sex and later submitted to vaginal intercourse. After these activities [259] were completed, she asked to leave. They dressed and he walked her to her car and asked to see her again. She indicated that perhaps they might meet at Fells Point. He gave her directions home and returned to his apartment where the police found him later that morning.

The record does not disclose the basis for this young woman's misgivings about her experience with the defendant. The only substantive fear she had was that she would be late arriving home. The objective facts make it inherently improbable that the defendant's conduct generated any fear for her physical well-being.

In my judgment the State failed to prove the essential element of force beyond a reasonable doubt and, therefore, the judgment of conviction should be reversed.

Judges Smith and Digges have authorized me to state that they concur in the views expressed herein.

APPENDIX

In the following cases rape convictions were overturned because the requirement of force necessary to affirmatively demonstrate lack of consent was not strictly complied with, or the facts were so sketchy or inherently improbable that this element could not be established, as a matter of law, beyond a reasonable doubt.

In Zamora v. State, 449 S.W.2d 43 (Tex. Crim. App. 1969), it was held that the evidence was insufficient to sustain a conviction of rape by force and threats where the sixteen-year-old prosecutrix, who had been engaging in sexual relations with the defendant stepfather for about six years, went to his bedroom to take him coffee, did not try to leave, took off part of her clothes at his request, made no outcry, and did not resist in any way, even though she knew what was going to happen when she sat on the bed. On appeal reference was made to certain threats which, if sufficient, would have excused the complainant's failure to resist. The defendant threatened to put the girl in a juvenile home and to whip her younger brother and sisters if she told her [260] mother. But the court explained, "the threats that were made occurred after the alleged act and were not made to cause the prosecutrix to yield, but to prevent her from informing her mother." 449 S.W.2d at 47 (emphasis supplied). The conviction was reversed.

In People v. Bales, 74 Cal. App.2d 732, 169 P.2d 262 (1946), the complaining witness testified that she met the appellant in a bar and later he physically forced her into his car and drove off. (The evidence in this respect was sufficient to sustain a charge of kidnapping.) Appellant next drove the woman down the highway and stopped the car off the road. He "came around to her side, and make a remark to the effect that he would then find out what kind of woman she was." 169 P.2d at 264. She testified "that she was `afraid' of the threat." Id. The court concluded:

There is an entire absence of evidence that she voiced any objection, made any appeal for help or tried to fight or struggle. There is no evidence of any force or threat by the appellant at that time, and no substantial evidence of any apprehension of immediate bodily harm accompanied by apparent power of execution. The evidence material to his charge fails to show either any reasonable resistance or any reasonable excuse for its absence. The old rule that there must be resistance to the utmost has been relaxed (People v. Cline, 117 Cal. App. 181, 3 P.2d 575), but not to the extent of doing away with the need of showing some resistance or, in proper cases, showing facts which fairly indicate some good reason for not resisting. [169 P.2d at 265.]

In Farrar v. United States, 275 F.2d 868 (D.C. Cir.1959), opinion amended (1960), the words of Chief Judge Prettyman, speaking for the court, are better left to speak for themselves:

As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it [261] is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, "I was scared," and thus transform an apparent consent into a legal non-consent which makes the man's act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.

In the case at bar there was an apparent acquiescence on the girl's part. She said she took off all her clothes, lay down on the bed, and had intercourse twice, some forty-five minutes apart. But she said she did this because she was scared. And she was quite clear, emphatic and insistent upon the cause of her fear; the man had a knife in his hand. The reason for her fear was tangible and definite. It was a knife, and it was in his hand. She so testified repeatedly.

But she never saw any knife. Now it is perfectly apparent that, if this man had had a knife in his hand while he was doing all the things she said he did over this two or three hour period, she must have seen it. He could not have had a knife and have done all these things, with her watching him as she said she did, without her seeing the knife. As a matter of fact, at the close of the Government's testimony the trial judge struck from the record all the testimony concerning the knife, "leaving her testimony in that it was something that felt sharp and felt like a knife." The judge said if there had been a knife the girl would have seen it.

...

Upon the foregoing facts and circumstances, when the knife disappeared from the record as a possible fact, the charge of rape disappeared, as I view the matter. The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear. The only factual substance to [262] any of the intangible threats allegedly made by him to her was the knife. There was no force or violence and no threat or fear of force or violence except for the knife. The charge of rape rested upon the presence of the knife. The Government failed to prove a case of rape. [275 F.2d at 876-77.] [Footnotes omitted.]

In Gonzales v. State, 516 P.2d 592 (Wyo. 1973), the complaining witness was 33 years old and the divorced mother of three children. She was working in a bar and defendant, someone she knew, came in shortly before closing and had been drinking. He asked her for a ride home and she refused, but he followed her and got into her car anyway. She testified she was nervous and scared at the time and made no further protest nor signalled with her horn. On a side road "[h]e asked her to stop `to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car...." 516 P.2d at 593.

When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, "I'm going to do it. You can have it one way or the other." [Id.]

There were no other threats. The witness testified she knew defendant's temper and was scared of him. She related several previous incidents to sustain her knowledge of his temper. The court concluded, "This is not a firm basis upon which to sketch a man of violence and one who would inspire fear." 516 P.2d at 593-94. It should be noted that although the conviction was reversed on other grounds, the court concluded that:

[i]nasmuch as the case must be retried in conformity with these principles [having quoted from Farrar and cited Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970)] we do not deem it amiss to state it is not entirely fair to a trial court or to the defendant to rely on the sketchy showing and lack of detail presented at this trial. [516 P.2d at 595.]

[263] There are a number of other cases in which the threats relied upon were found insufficient. In State v. Horne, 12 Utah, 2d 162, 364 P.2d 109 (1961), the prosecutrix was a 21-year-old married woman with two young children. They lived in a trailer. The defendant and she were acquainted, and he had visited her on previous occasions. On this particular night he entered her trailer uninvited and stated he was going to make love to her. She protested, she struggled, and her little girl, who had been asleep in her mother's bed, awoke and began crying. Finally he let her go to the bathroom and she refused to come out. He came and got her and they struggled some more. Eventually she gave in. She testified she was afraid for her children.

The court set forth the rule to be applied and applied it to the facts:

The old rule of "resistance to the utmost" is obsolete. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make reasonable for her to do in order to manifest her opposition. However, in determining the sufficiency of the evidence, there must be considered the ease of assertion of the forcible accomplishment of the sexual act, with impossibility of defense except by direct denial, or of the proneness of the woman, when she finds the fact of her disgrace discovered or likely of discovery to minimize her fault by asserting force or violence, which had led courts to hold to a very strict rule of proof in such cases.

...

The prosecutrix did not attempt to leave the trailer to seek help, although she had ample opportunity. When she went to the bathroom the defendant, according to her testimony, had already removed his pants and had made indecent proposals and advances. Yet, she did not avail herself of the opportunity to seek help. It is the natural impulse of every honest and virtuous female to flee from threatened outrage. Her explanation that she did [264] not want to leave the children alone with the defendant is a rather weak one, to say the least. It would have taken less than a minute to rouse her neighbors. Furthermore, she left the defendant with the children for 10 to 15 minutes while she was in the bathroom.

...

There was no evidence of any threats made to either the prosecutrix or her children.

We have carefully evaluated the testimony of the prosecutrix and conclude that it is so inherently improbable as to be unworthy of belief and that, upon objective analysis, it appears that reasonable minds could not believe beyond a reasonable doubt that the defendant was guilty. The jury's verdict cannot stand. [364 P.2d at 112-13.] [Footnotes omitted.]

In Johnson v. State, 118 So.2d 806 (Fla. Dist. Ct. App. 1960), the evidence was insufficient to sustain a jury finding that the prosecutrix was forced against her will to have intercourse with defendant or that her fear was sufficient for the jury to find that defendant was guilty of rape through fear. In this case an eighteen-year-old high school student accepted a ride home from an acquaintance, which eventually led to her seduction. At no time did the defendant threaten her with any weapon. She screamed, but did not resist in any other way, nor attempt to flee. Quoting from State v. Remley, 237 S.W. 489, 492 (Mo. 1922), the Florida court stated:

The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts [265] to which they relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, [41 S.W. 973, 43 S.W. 1095]. But we do hold that statements made by a witness that are not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness, and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding. [118 So.2d at 815-16.]

And in People v. Blevins, 98 Ill. App.2d 172, 240 N.E.2d 434 (1968), the evidence was insufficient where there were unexplained inconsistencies in the prosecution's case and the defendant was found peacefully asleep at the scene of the "crime" when arrested.

Even in the closest cases which have been upheld by other jurisdictions there existed more evidence of threat-induced fear of imminent bodily harm than existed in the present case.

In Brown v. State, 59 Wis. 200, 207 N.W.2d 602 (1973), the defendant threatened his victim with a water pistol. She had reason to believe it was real, and reason to believe he would shoot her if she did not comply.

In Johnson v. United States, 426 F.2d 651, 654 (D.C. Cir.1970), the victim's failure to resist "was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location and told her it would be useless for her to scream because no one would hear." (Emphasis in original.)

In Brown v. State, 581 P.2d 189 (Wyo. 1978), the victim was treated very roughly and bruised. She didn't resist because she was three or four months pregnant (which the defendant knew) and because she was afraid for both her own and her baby's lives.

[266] In Tryon v. State, 567 P.2d 290 (Wyo. 1970), the victim did not resist, out of fear. Although he did not threaten her, the conviction was sustained. The court explained:

We find here a child afraid of the dark alone with this defendant several miles from her home, very late at night — and with a man whom she knew had been drinking and quarreling with the woman for whom she had been baby-sitting. We cannot help but suggest that all of these elements could totally terrify a child of tender years or that the jury could have so reasonably inferred.

...

Although the defendant did not express threats, wielded no weapons, and did not strike the victim, the force applied when considered in light of the facts previously related is sufficient to support the jury's finding of non-consent. [567 P.2d at 292-93.]

 

[1] Section 464E provides as follows:

"Undefined words or phrases in this subheading which describe elements of the common-law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading."

[2] See, e.g., McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Wilson v. State, 49 Del. 37, 109 A.2d 381 (1954), cert. denied, 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955); Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, cert. denied, 359 U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959); State v. Catron, 317 Mo. 894, 296 S.W. 141 (1927); State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); Commonwealth v. Stephens, 143 Pa. Super. 394, 17 A.2d 919 (1941); R. Perkins, Perkins on Criminal Law, 160-61 (2d ed. 1969).

[3] See State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979); People v. Hunt, 72 Cal. App.3d 190, 139 Cal. Rptr. 675 (1977); State v. Dill, 42 Del. 533, 40 A.2d 443 (1944); Arnold v. United States, 358 A.2d 335 (D.C. App. 1976); Doyle v. State, 39 Fla. 155, 22 So. 272 (1897); Curtis v. State, 236 Ga. 362, 223 S.E.2d 721 (1976); People v. Murphy, 124 Ill. App.2d 71, 260 N.E.2d 386 (1970); Carroll v. State, 263 Ind. 86, 324 N.E.2d 809 (1975); Fields v. State, 293 So.2d 430 (Miss. 1974); State v. Beck, 368 S.W.2d 490 (Mo. 1963); Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947); State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933, 96 S.Ct. 288, 46 L.Ed.2d 264 (1975); State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975); Brown v. State, 576 S.W.2d 820 (Tex. Cr. App. 1979); Jones v. Com., 219 Va. 983, 252 S.E.2d 370 (1979); State v. Baker, 30 Wash.2d 601, 192 P.2d 839 (1948); Brown v. State, 581 P.2d 189 (Wyo. 1978).

Some jurisdictions do not require that the victim's fear be reasonably grounded. See Struggs v. State, 372 So.2d 49 (Ala. Cr. App.), cert. denied, 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195 (1979); Kirby v. State, 5 Ala. App. 128, 59 So. 374 (1912); Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976), citing Hazel v. State, supra; State v. Herfel, 49 Wis.2d 513, 182 N.W.2d 232 (1971). See also Salsman v. Com., 565 S.W.2d 638 (Ky. App. 1978); State v. Havens, 264 N.W.2d 918 (S.D. 1978).

[*] See the attached Appendix for a further recitation of cases which support this view.

380 Mass. 296 (1980)
402 N.E.2d 1051

Present: HENNESSEY, C.J., QUIRICO, WILKINS, LIACOS, & ABRAMS, JJ.

[297] John P. Ward for the defendant.

Dianne M. Dillon, Special Assistant District Attorney, for the Commonwealth.

QUIRICO, J.

On November 22, 1978, a Superior Court jury convicted Kenneth A. Appleby of assault and battery with a dangerous weapon, to wit: a riding crop. G.L.c. 265, § 15A.^[1] The judge sentenced Appleby to eight to ten years in the Massachusetts Correctional Institution at Walpole. Appleby appealed pursuant to G.L.c. 278, §§ 33A-33G, and we granted his petition for direct appellate review. He alleges error in (1) the judge's denial of a directed verdict, and (2) the judge's instructions to the jury on the issues of consent and intent. We affirm the conviction.

Kenneth Appleby and Steven Cromer were engaged in a homosexual, sadomasochistic relationship for over two years, during most of which period they lived together. Appleby frequently beat Cromer. Appleby's general defense to the indictments was that Cromer had consented to the beatings, and that he, Appleby, had intended them for Cromer's sexual gratification. In addition to pressing his arguments on consent and intent in this appeal, he maintains that he should have had a directed verdict because the Commonwealth failed to present a prima facie case of assault and battery by means of a dangerous weapon as set forth in G.L.c. 265, § 15A.

By far the major portion of the Commonwealth's case consisted of the testimony of the alleged victim, Steven Cromer. There follows a summary of his testimony; material from other sources is so noted. The summary continues to the point where we first mentioned Appleby's motion for a directed verdict.

Cromer lived with Appleby during most of the period from June, 1974, until August 31, 1976 (the date of the incident for which Appleby was convicted). His entire relationship [298] with Appleby, including the homosexual acts, was forced upon him; he lived with Appleby as a "servant," performing household and other duties. Appleby beat him when he was dissatisfied with Cromer's performance of these duties. Their residence was like a "military camp," with Appleby owning a variety of weapons and employing them on persons in his "torture chamber," which Cromer was forced to help design.

In October, 1975, an enraged Appleby beat Cromer badly with a bullwhip and baseball bat, fracturing his kneecap. Cromer was hospitalized for this injury until December 4. He received surgery to repair the kneecap, and he spent several weeks on crutches thereafter.

En route to the hospital, Appleby suggested to Cromer that they tell hospital personnel that Cromer had had an epileptic seizure and fallen down some stairs, and Cromer, who had had seizures before, agreed and maintained the story throughout the hospital stay. They fabricated the story "[t]o cover things up." When he left the hospital, Cromer returned to Appleby's residence in West Springfield, where he resumed his "duties" as best he could.

When asked what distinguished this October, 1975, incident from other beatings, Cromer stated that it was "going a little over what I was used to." The October, 1975, incident formed the basis of the first indictment, on which the jury acquitted Appleby.

A second incident, the subject of the second indictment, allegedly occurred on February 28, 1976, when Appleby beat Cromer with a bullwhip because of displeasure with a sandwich Cromer had prepared. A friend of Appleby was outside at the time, and Appleby called to this person to bring snow to apply to Cromer's wounds. Cromer liked this "attention": "Other beatings I had, nothing came. No attention was made to me like that. It was unusual in that respect." The jury acquitted Appleby on this indictment as well.

The third incident occurred on August 31, 1976. Cromer served Appleby some ice cream which had melted. This enraged [299] Appleby, who reached for a riding crop with which he hit Cromer. Cromer described the blow as follows: "He just connected on the back.... He was sitting down.... [H]e just lashed with it like that (Indicates.) And it just barely connected with my back. There were some thongs at the end and I just felt them hit me, and he was losing his temper.... I felt the whip hit me. A glancing blow." Cromer, in his underwear, ran from the house and to a monastery, where a priest encouraged him to telephone his relatives. His brother and sister-in-law came to the monastery for him, and later helped him to remove his personal belongings from Appleby's residence. Cromer never returned to Appleby's place thereafter. The jury convicted Appleby on the indictment involving the riding crop incident.

Cromer maintained that Appleby was sadistic, but denied that he was engaged in a sadomasochistic relationship with Appleby. He denied that he was a homosexual, and he claimed the homosexual acts were forced upon him from the beginning. He said he could not recall whether violence and sexual activity with Appleby occurred close in time. Cromer said "Mr. Appleby explained later that he delighted in violence to an extent that he said it was almost sexual or sexual."

Cromer acquiesced in this relationship because Appleby "took me over in a way.... He had convinced me that people were constantly following me and observing my every action and reporting to him." Cromer told no one about the relationship, and sought aid from no one, because Appleby told him no one would believe him, that he was a "hippie," a "weirdo," and on drugs. He thought that even the police could not "stop" Appleby. He was under "duress" the entire time because he feared that Appleby would harm him or members of his family if he did not continue in their relationship.

At one point Cromer stated that he never protested or told Appleby to stop, because he was afraid to do so. At [300] another point he stated that he did protest Appleby's sadistic activity.

Cromer had a low opinion of himself for having got into the situation, and he "lost" himself in his functions at the Appleby residence. He said that after the bullwhip incident, "I felt that I was just a joke — that I had taken the beating and had done nothing about it. Just took the beating, and when he told me to clean up the food off the floor after that, I did, and Jay Robbins [Appleby's friend] came in and saw me on my hands and knees doing this."

At the close of the Commonwealth's case-in-chief, which covered almost 700 pages of the trial transcript, Appleby moved for a directed verdict on the basis that the Commonwealth had failed to establish a prima facie case. The judge denied the motion. The defendant then presented evidence which, including his own testimony, covered almost 600 pages of the transcript. The defendant renewed his motion for a directed verdict at the end of the trial, and it was again denied.

Since the principal question for the jury was one of the credibility of the two main witnesses, Cromer and Appleby, we also summarize Appleby's account of his relationship with Cromer. This summary will continue to the point where we refer to the defense witness Webster.

Appleby's general defense to the three charges was that Cromer had consented to their sadomasochistic relationship. He admitted that he had whipped or beaten Cromer almost daily. He denied, however, that the fractured kneecap was caused by a beating; rather, he asserted the truth of the story of the epileptic seizure and fall down the stairs. (He also testified to witnessing a prior seizure and presented medical evidence of Cromer's epilepsy.) As to the second incident, he denied that he ever beat Cromer severely and said that February 28, 1976, did not stick out in his mind as involving any incident different from the usual daily whippings. Regarding the riding crop incident, Appleby testified that Cromer ran out of the house in his underwear on a rainy night, but said that this occurred on July 24, [301] 1976, after a conversation, and that there was no beating or whipping of any kind that evening.

Appleby trained attack dogs for a living, and kept whips in his house for that purpose. He ascribed the initiation of the sadomasochistic activities entirely to Cromer. He met Cromer while the latter was "hustling" sex for money on a Springfield street. At that time Appleby was a "conventional" homosexual. The first night they met, Cromer showed him a braided rope he had made from clothesline, and said he liked to be beaten with that. Appleby refused to engage in beatings. Cromer beat himself with the clothesline, and Appleby told him not to use it. In the months before Cromer moved in, their "regular sexual ritual" consisted solely of fellatio and anal intercourse. Cromer told Appleby that he took drugs, and Appleby saw Cromer injecting himself and taking pills.

One evening, Cromer asked to go home with Appleby; the latter assented on the condition that Cromer not bring any drugs. Shortly after they arrived, Cromer spotted one of the whips Appleby used to train dogs. Cromer asked Appleby to beat him with the whip, but the latter refused.

The next day, Cromer telephoned Appleby and asked if he could come to live with him, because some people were following him and trying to kill him. Appleby told Cromer he had taken too many pills. Shortly thereafter, Cromer arrived at Appleby's home and begged to be let in. Appleby told him he could move in if he fulfilled four conditions; Cromer balked at the condition that he give up drugs, but finally acquiesced, and moved all of his belongings into Appleby's home. One of the other conditions was that there would be no beatings, but within two weeks Appleby reneged on this condition and agreed to strike Cromer for the latter's sexual fulfilment.^[2] He did this because Cromer begged for it, and because he, Appleby, had a sexual reaction to the sexual effect of the beatings on Cromer.

[302] After this, their relationship became a sadomasochistic one, as well as homosexual, and involved daily beatings of Cromer. At first, Cromer was able to attain sexual satisfaction with only a few strokes of a whip, but gradually he began to require more variety. Together they acquired or constructed leg irons, handcuffs, a torture rack, several other implements of torture, and a room which Cromer liked to call the "torture chamber."

When shown the riding crop on direct examination, Appleby denied ever using it on Cromer. On cross-examination, however, he admitted that the riding crop "was employed many times," and said that Cromer "favored" the crop, that "he would be whipped until he reached sexual orgasm." The riding crop never caused "welts," but only "redness;" in fact none of the beatings caused more than "redness." Appleby never enjoyed whipping Cromer; he enjoyed the sexual effect it had on Cromer and the fact that Cromer allowed him to have anal intercourse after each beating. When asked if he intended to strike Cromer, he said, "I did it with the intent to turn him on sexually."

Appleby had several other sadomasochistic relationships after Cromer left, and used the implements he had purchased or made for Cromer. All of the implements, including the riding crop, were found at Appleby's house in 1978.

Appleby presented as part of his case expert testimony of Dr. John Peter Webster, a minister and psychotherapist. Webster, who had counseled Appleby after his arrest, also had some knowledge of sadomasochism. We summarize his testimony. He defined sadomasochism as involving a fusion of the sexual and aggressive drives, and said the masochist may need to be "punished" in order to release inhibited sexual feelings. He said that the beatings are generally inseparable from the sexual part of the relationship, and that typically the masochist needs to feel helpless and dependent. Cromer's staying with Appleby under fear of harm to himself or his family "would certainly fit the pattern of masochism."

[303] The propriety of the denial of the motions for a directed verdict and the correctness of the judge's instructions to the jury both turn on certain questions of law, and we therefore address them first. Those questions are: (1) whether the riding crop was a "dangerous weapon" for purposes of G.L.c. 265, § 15A, (2) what sort of criminal intent is required by said § 15A, and (3) what role Appleby's consent defense should play in this case.

1. General Laws c. 265, § 15A reads: "Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one half years." Courts have classified dangerous weapons into two categories: those dangerous per se and those dangerous as used. See Commonwealth v. Farrell, 322 Mass. 606, 615 (1948).

(a) A "dangerous weapon per se" is an instrumentality designed and constructed to produce death or great bodily harm. State v. Luckey, 69 Ohio Op.2d 111, 113 (Ohio App. 1974). See also Farrell, supra. Thus, for example, firearms, daggers, stilettos and brass knuckles are usually classified as dangerous per se, because they are designed for the purpose of bodily assault or defense. On the other hand, pocket knives, razors, hammers, wrenches and cutting tools are not so classified. People v. Vaines, 310 Mich. 500, 505 (1945) (dictum). In one case dealing with a "driving whip," the court held that the whip was not dangerous per se because it was not designed for the offense or defense of persons. State v. Page, 15 S.D. 613, 615-616 (1902).^[3]

A riding crop is not designed to inflict death or serious bodily harm upon either persons or animals. It is designed [304] to inflict temporary pain in order to cause an animal to move. Therefore it is not dangerous per se.

(b) Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be "dangerous weapons." See Farrell, supra (lighted cigarette); Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (automobile door used to strike police officer); Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 486-487 (1974) ("kitchen-type" knife and German shepherd dog may both be used as "dangerous weapons"), S.C., 367 Mass. 411 (1975); United States v. Loman, 551 F.2d 164, 169 (7th Cir.) (walking stick used with enough force to break it), cert. denied, 433 U.S. 912 (1977); United States v. Johnson, 324 F.2d 264, 266 (4th Cir.1963) (chair brought down upon victim's head); Bennett v. State, 237 Md. 212, 216 (1964) (microphone cord tied around victim's neck, causing inability to speak and marks on throat); Vaines, supra at 505-506 (ordinary jackknife); People v. Buford, 69 Mich. App. 27, 30 (1976) (dictum) (automobile, broomstick, flashlight and lighter fluid may all be dangerous as used); State v. Howard, 125 N.J. Super. 39, 45 (1973) (straight razor). Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case. Farrell, supra at 614-615. Tarrant, 2 Mass. App. Ct. at 487. Vaines, supra at 505. Buford, supra at 32. Howard, supra at 47.

A riding crop, such as the one involved in this case, is capable of being used to inflict serious bodily harm, and possibly even to cause death. The riding crop Cromer identified as that which Appleby used on August 31, was admitted in evidence. We have examined it. It is approximately eighteen inches in length, and constructed of heavy braided leather wrapped around a solid leather core. At its thickest point, it is slightly less than one inch in diameter, tapering off to a diameter of about one-third of an inch. Cromer and Appleby both testified that leather thongs were missing from the end by the time of the trial. The riding crop is more substantial than one might anticipate an ordinary riding crop to be. It resembles instead a short whip. We [305] are satisfied that it could be employed to inflict serious bodily harm. Therefore, we cannot hold as a matter of law that it can never be a dangerous weapon as used.

(c) The jury in this case had to find that the riding crop was in fact dangerous as used in order to convict Appleby under § 15A. Whether they could lawfully have done so depends on the gravamen of the offense of assault and battery by means of a dangerous weapon as set forth in § 15A.

The meaning of "dangerous weapon" depends to a certain extent on the context in which it is used. We have held that the thrust of the offense of assault with a dangerous weapon, for example, is the outward demonstration of force which breaches the peace, and therefore even an unloaded gun (known only by the defendant to be unloaded) may be a dangerous weapon in that context. Commonwealth v. Henson, 357 Mass. 686, 692 (1970). See also United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir.1971) (assault with dangerous weapon does not require proof gun was loaded). The gist of the offense of armed robbery is robbery "while armed," and thus there is no need to prove the defendant used a weapon other than to threaten. Henson, supra at 690. Commonwealth v. Tarrant, 367 Mass. 411, 415-416, 418 (1975) (dog may be "dangerous weapon" for armed robbery, G.L.c. 265, § 17, and Commonwealth need not prove actually dangerous or used in harm-inflicting manner).

Thus the relevant behavior for the offense of assault with a dangerous weapon, G.L.c. 265, § 15B, is an outward demonstration of force, and § 15B requires only apparent ability to injure. Henson, supra at 692-693. The behavior for robbery while armed with a dangerous weapon, G.L.c. 265, § 17, which distinguishes it from unarmed robbery, G.L.c. 265, § 19, is the objectively menacing behavior of the defendant with the instrumentality causing fear in his victims. Tarrant, 367 Mass. at 415. Whether a weapon not dangerous per se qualifies for either of these statutory crimes is a question of fact to be decided "by objective standards [306] and not by the victim's subjective apprehension." Tarrant, 367 Mass. at 416. Henson, supra at 693.

One of the principal distinctions between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon is in the punishment. The maximum penalty for the former is five years, G.L.c. 265, § 15B, and for the latter is ten years, G.L.c. 265, § 15A. We must therefore ask what behavior distinguishes the two crimes, and whether the meaning of "dangerous weapon" is different.

"The definition of an assault is, an attempt or offer with force and violence to do injury to a person either from malice or wantonness; and a battery is where an injury is actually inflicted under such circumstances." Commonwealth v. Ruggles, 6 Allen 588, 590-591 (1863). "An assault and battery is the intentional and unjustified use of force upon the person of another, however slight ..." (emphasis supplied). Commonwealth v. McCan, 277 Mass. 199, 203 (1931).^[4] Under § 15A, the battery must be accomplished by means of the dangerous weapon, and not merely while possessing the weapon. Salemme v. Commonwealth, 370 Mass. 421, 424 (1976). Commonwealth v. Manning, 6 Mass. App. Ct. 430, 436, 438 (1978). Commonwealth v. Jacobs, 6 Mass. App. Ct. 618, 622-623 (1978). Therefore, § 15A requires an assault by means of a dangerous weapon, see Henson, supra, and also an intentional, unjustified touching, however slight, by means of that dangerous weapon. The criminal law of assault and battery by means of a dangerous weapon expresses society's desire to punish [307] the use of an instrument which is capable of producing serious bodily harm. We hold that there was sufficient evidence for the jury to find that the riding crop, used as it was by Appleby in this case, was a dangerous weapon.^[5] The law need not wait until the instrument actually does cause serious bodily harm in order to classify the weapon as dangerous. Any touching with a potentially dangerous weapon can be assault and battery by means of a dangerous weapon for purposes of § 15A, provided that the assault element and the intentional application of force are established. Commonwealth v. Hawkins, 157 Mass. 551, 553 (1893), and cases cited.

2. We next examine the type of criminal intent necessary for the crimes punishable under G.L.c. 265, § 15A. It has been held that assault and battery by means of a dangerous weapon (G.L.c. 265, § 15A) is a general intent crime in Massachusetts. See Commonwealth v. Randall, 4 Gray 36, 38-39 (1855); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 759 n. 8 (1978). Compare G.L.c. 265, § 15A, with G.L.c. 265, § 14 (mayhem: "with malicious intent to maim or disfigure" and "by such assault disfigures") and G.L.c. 265, § 15 (assault with intent to murder or maim); cf. Commonwealth v. Hogan, 379 Mass. 190, 192 (1979). Section 15A does not require specific intent to injure; it requires only general intent to do the act causing injury. Hawkins, supra. See generally W.R. Lafave & A.W. Scott, Jr., Criminal Law § 28 (1972).^[6]

[308] The required intent is satisfied by proof of intent to commit the lesser included crime of assault with a dangerous weapon. See Henson, supra; Commonwealth v. Slaney, 345 Mass. 135, 137-139, 141 (1962). Once an actor intends to commit assault with an object capable of causing bodily harm,^[7] he is threatening to use the instrumentality in a dangerous fashion. The offense of assault and battery by means of a dangerous weapon is complete once the threat is consummated by the application of any force upon the victim by means of the instrumentality. Hawkins, supra. This effectuates the policy of § 15A to deter the use of "neutral" objects in a dangerous fashion.

In sum, the offense of assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A, requires that the elements of assault be present (see Henson, supra; Slaney, supra), that there be a touching, however slight (McCan, supra), that that touching be by means of the weapon (Salemme, supra), and that the battery be accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.

3. The evidence in this case must be viewed in a strained manner in order to support Appleby's argument that the jury were required to find that Cromer consented to be hit with the riding crop. Cromer testified that he did not consent to any of the beatings, that the riding crop incident occurred [309] after an argument over melted ice cream, and that he immediately ran from the house when Appleby "lost his temper" and struck him. Appleby did not testify that there was any beating that evening which related to sexual activity or to which Cromer otherwise consented; he flatly denied that a beating had occurred on the night Cromer ran to the monastery. He further said this night was July 24, but Father Murray (from the monastery), Leon Cromer (Cromer's brother), and Mary Cromer (Cromer's sister-in-law) all testified that the monastery incident occurred on August 31. Furthermore, the riding crop incident was remote in time from the earlier alleged incidents, when a claim that Cromer consented to the relationship might have received more support in the evidence.

The only conceivable way that consent by Cromer on August 31 could be raised by the evidence is by inferences that a) Cromer consented to the relationship generally, and b) Appleby subjectively believed on the night in question that Cromer would consent to be hit with the crop on the basis of his past behavior. Giving Appleby the benefit of this rather strained construction, we shall briefly discuss the legal viability of Appleby's contention that as a matter of law Cromer could consent to their sadomasochistic relationship.

(a) Assuming that the riding crop incident occurred in relation to sexual behavior, the question is whether the State can regulate, by the law of assault and battery, violent behavior which occurs in private, consensual sexual relationships.

We held in Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), that G.L.c. 272, § 35, prohibiting "unnatural and lascivious" acts, "must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific conduct, which is inherent in § 35, requires such an interpretation. We do not decide whether a statute which explicitly prohibits sexual conduct, even if consensual and private, would be constitutionally infirm."

[310] After Balthazar, consent is a defense to a charge of "unnatural and lascivious" acts under c. 272, § 35. See also Commonwealth v. Hill, 377 Mass. 59, 62-63 (1979) (applying Balthazar retroactively); Balthazar v. Superior Court, 573 F.2d 698, 699 (1st Cir.1978) (dictum); People v. Onofre, 72 App. Div.2d 268 (N.Y. 1980). Appleby has cited no case, and we are aware of none, extending protection on either statutory or constitutional grounds beyond the sexual acts and to accompanying force or violence by means of dangerous weapons. See generally Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Towler v. Peyton, 303 F. Supp. 581 (W.D. Va. 1969) (defendant may constitutionally be convicted of forced acts of sodomy with wife). Any right to sexual privacy that citizens enjoy, and we do not here decide what the basis for such a right would be if it exists,^[8] would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations. See generally Balthazar v. Superior Court, supra at 701 (dictum) (sadomasochistic behavior "universally condemned"); Onofre, supra (dictum) (privacy right not absolute; State may regulate conduct which "has the potential for working harm"; prevention of "physical violence and disorder" probably valid State interest).

General Laws c. 265, § 15A, is not aimed at regulating sexual conduct. Appleby was in no way charged with a crime for committing homosexual acts. Rather he was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of an assault and battery with a dangerous weapon. Farrell, supra at 620-621. See also Commonwealth v. Collberg, 119 Mass. 350 (1876).

[311] (b) The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another, as Appleby testified) does not prevent the State from protecting its citizens against physical harm. The invalidity of the victim's consent to a battery by means of a dangerous weapon would be the same, however, whether or not the battery was related to sexual activity. The general rule is: "It is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial." Farrell, supra at 620.^[9] Regardless of whether sexual activity was involved in the incident in question, Cromer's consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime charged punishable under G.L.c. 265, § 15A.

4. Appleby alleges that the judge erred in denying his motions for a directed verdict.^[10] The standard we apply is whether there was enough evidence in the case-in-chief, when taken in the light most favorable to the Commonwealth, "that could have satisfied a rational trier of fact of each [essential element of the offense] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Commonwealth v. Rosenberg, 379 Mass. 334, 337 (1979).

We hold that the Commonwealth presented in its case-in-chief enough evidence of the elements of assualt and battery [312] with a dangerous weapon, to which Cromer by law could not consent, to support the denial of the motion. We have already said that an assault with a dangerous weapon coupled with slight, intentional touching can qualify for assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A. Even if Appleby subjectively intended to use the crop for his own sexual purposes, the evidence was sufficient to permit the jury to find that he possessed the requisite intent to use the riding crop in a dangerous manner and thereby commit a battery.

The evidence, both at the close of the Commonwealth's case and after both sides had rested, supports a jury finding that Appleby intentionally placed Cromer in fear and struck him with the riding crop, an instrumentality which was then being used as a dangerous weapon. There was no error in the denial of the directed verdict.

5. Appleby alleges error in the jury instructions, and in the denial of his request for instructions that (a) intent to cause sexual gratification precludes a finding of guilty of the offense charged, and (b) private, consensual sadomasochistic behavior is an "absolute defense to the charge of assault and battery with a dangerous weapon." We have reviewed the judge's charge, and find no error. Appleby's requested instructions squarely conflict with our holdings today and with the holdings of Farrell, supra.

For all the foregoing reasons, we affirm Appleby's conviction. While we express some reservation on the severity of the sentence imposed for the particular assault and battery on August 31, 1976, as established by the jury verdict, albeit an assault and battery by means of a dangerous weapon, that subject is not open to review by this tribunal. See G.L.c. 278, §§ 28A-28C.

Judgment affirmed.

HENNESSEY, C.J. (concurring).

I concur with the result and the reasoning of the court's opinion. I add these few [313] words to bring emphasis to the court's expressed "reservation" as to the severity of the sentence imposed. The only incident which resulted in a guilty verdict was minor. It was a blow which "barely connected" with the victim's back; it was a "glancing blow," with no evidence of visible injury or after effects. We may speculate that the sentencing process was perhaps influenced by the indictments as to two more serious episodes of violence. However, the jury, by their not guilty verdicts, rejected those charges, and as a consequence they would have no proper bearing on the sentence. Perhaps the sentence here was unduly influenced by knowledge of other charges pending against the defendant at the time of this trial. Perhaps, also, the sentence was influenced by certain related circumstances which are abhorrent to most persons, but the defendant was not charged with those circumstances in any indictment. In sum, the sentencing result here is one which focuses on the compelling need for reasoned application of the broad sentencing discretion ordinarily available to our trial court.

[1] The jury acquitted Appleby on two other indictments charging assault and battery with a dangerous weapon, to wit: a bat, and assault and battery with a dangerous weapon, to wit: a whip.

[2] The two other conditions were that Cromer (a) attend church every Sunday with Appleby, and (b) not engage in any "hustling."

[3] Page was decided in the context of a statute prohibiting rioting, and providing for higher penalties for rioting while carrying a "deadly or dangerous weapon." Because no use of the weapon was required for conviction of the higher offense, the court held that the weapon must be dangerous per se. State v. Page, 15 S.D. 613 (1902).

[4] The judge in Appleby's case charged the jury that a battery "is the intentional and unjustified use of force, however slight, upon the person of another. Now, not every touching or brushing is a battery. It must be intentional touching or brushing. Everyday social intercourse of urban and suburban life in shopping and public assemblies, in sporting events, persons in crowds are subject to a certain amount of jostling, pushing and shoving — while these contacts may be somewhat offensive, they do not constitute battery because they enjoy a measure of justification if they're not excessive. So there can be a touching or brushing and that can be a battery if it's intentional."

[5] Of course, the question whether a weapon is dangerous as used is always one for the fact finder. "In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled." Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975). Thus the holding of the present case should not be construed to mean that any intentional unjustified touching with an object previously held in a different case to have been capable of being a dangerous weapon constitutes a crime under G.L.c. 265, § 15A. A reasonable jury might well reach a different conclusion as to a riding crop when used in different circumstances.

[6] Weapons which are dangerous per se will qualify for § 15A convictions when used to commit an assault and a battery of any kind, and without a jury determination that the weapon was dangerous as used. This is because public policy discourages the use of such weapons, and persons are charged with knowledge of their inherently dangerous nature. See Commonwealth v. Smith, 312 Mass. 557, 558-560 (1942); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 758 (1978). See also Tarrant, 367 Mass. at 416 (for armed robbery, where weapon not dangerous per se, potential danger must be assessed by fact finder using objective standards and not victim's subjective apprehension).

[7] "Bodily harm" is defined as "any hurt or injury calculated to interfere with the health or comfort of the [victim]." Commonwealth v. Farrell, 322 Mass. 606, 621 (1948), quoting from Rex v. Donovan, [1934] 2 K.B. 498, 507.

[8] See generally Commonwealth v. Balthazar, 366 Mass. 298, 301 n. 2 (1974), and cases cited.

[9] Farrell involved a female victim who had gone to a hotel room with the defendant, apparently for the purpose of having sexual intercourse, although this is not clearly stated in the review of the evidence. The defendant cut her with a razor and disfigured her body with lighted cigarettes. It appears from the facts that she neither knew this would occur nor consented to it, but this court held that as a matter of law she could not have consented.

[10] The Commonwealth argues that the classification of the riding crop as a dangerous weapon is not properly before this court because Appleby did not state grounds for his motion for directed verdict and the thrust of his defense was consent. The motion for a directed verdict raises the question of the sufficiency of the evidence as to all essential elements of the offense, however. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

James L. Sultan for the defendant.

[379] Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

CORDY, J.

Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G. L. c. 265, § 16; armed home invasion in violation of G. L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and assault and battery in violation of G. L. c. 265, § 13A.^[1] A divided panel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass. App. Ct. 587 (2011), and we granted the defendant's application for further appellate review.

On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 577-578 (2003) (Lawrence), the trial judge committed constitutional error by not instructing the jury that consent is a defense to the crimes of armed home invasion and assault and battery by means of a dangerous weapon. The defendant also claims that the judge erred by admitting certain evidence regarding materials retrieved from his home computer. This evidence included eight photographs and one ninety-second "video clip" (video), each depicting a nude or partially nude woman being strangled seemingly to death; an Internet article reporting the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of images stored on the computer "that were strangulation-oriented or had strangulation themes," as well as testimony about Internet searches and the number of files saved on the computer that concerned asphyxiation.

We conclude that there is no conflict between the reasoning of Lawrence, supra, and our prior decisions holding that consent is not a defense to the crimes charged, see Commonwealth v. Mahar, 430 Mass. 643, 652-653 (2000) (armed home invasion), and Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (assault and battery by means of dangerous weapon), and the judge [380] appropriately instructed the jury on consent. We further conclude that, although admission of the photographs, article, and testimony were proper, the judge's failure to view the video prior to ruling that its probative value outweighed its prejudicial effect was an abuse of discretion. Consequently, we have independently reviewed the content of the video in the context of its use at trial and conclude that it was highly probative of the defendant's motive and intent, the principal issues contested at trial, outweighing its plainly prejudicial effect. Accordingly, we affirm.

Background.

We recite the essential facts the jury could have found, the details of which are set forth in Commonwealth v. Carey, supra at 588-591.

1. The Commonwealth's case. In the spring of 2007, the victim and her husband were separated, the victim living with their twelve year old son in Hamilton, and her husband residing in an apartment in Arlington. The couple were in the process of reconciling, however, and the husband frequently spent time at the Hamilton home. The defendant lived with his girl friend in Braintree; however, the defendant's former wife lived near the victim and was her friend. The defendant performed work on the victim's home and had become acquainted with the victim's husband through their mutual interest in golf. The defendant's daughter was also friendly with the victim's son.

On the evening of June 6, 2007, the victim's son informed her that he needed to bring a Spanish food dish to school the following day. After a brief trip to the market to purchase ingredients, the victim began making a flan in the kitchen on the first floor of her home. Her son was in his second-floor bedroom.

At approximately 9:40 P.M., the victim heard a knock on a glass door that separated the kitchen area from a rear deck. Thinking it was her husband, who had just left to return to his apartment, the victim walked toward the door and recognized instead the defendant. She opened the door for the defendant, who entered and asked for her husband. When the victim informed him that her husband was not there, the defendant responded, in an aggressive tone, "Why would he invite me over for a drink if he's not here?"^[2] Frightened, the victim suggested [381] that they telephone her husband, but the defendant declined the offer. The victim then asked the defendant, who looked "drunk" and whose breath smelled of alcohol, to leave. She explained that she had to finish making the dessert, and moved toward the glass door through which the defendant had entered the house.

The defendant, however, did not leave. Instead, he attacked the victim, wrapping a necktie around her neck and pulling it from both ends. The victim managed to place her hands between the tie and her throat as the defendant continued to pull on the ligature. The two struggled, and the victim knocked over a heavy chair before falling to the floor.

As the victim "began to fade out," she heard her son run downstairs. The son testified that, on reaching the kitchen area, he saw the defendant choking his mother, who was on the floor and trying to free herself from the defendant's grasp. When the son yelled, "What are you doing?" the victim told him to "[g]et a knife and stab him." The son went to the kitchen, retrieved a small knife, and stabbed the defendant in the back. When he did so, the blade of the knife separated from the handle. The son then dropped the handle, grabbed the defendant, and attempted to pull the defendant away from his mother.

At some point, the defendant released his hold on the victim's throat and advanced toward the son. When he saw that the victim had risen to her feet, however, the defendant moved back toward her and punched her in the forehead and mouth.^[3] The victim, her son, and the defendant then ran from the house. The victim ran to one neighboring house, and her son fled to another. The defendant got into his vehicle and drove away.

The victim's neighbors contacted the police soon after the victim and her son arrived at their respective houses. Police officers arrived and examined the area, noticing signs of a struggle in the victim's house and discovering a piece of a necktie on the deck behind it. A deoxyribonucleic acid (DNA) analyst testified at trial that hairs found on the tie matched that of the [382] victim, and that "handler DNA" discovered on the tie was a mixture from at least three people, including the victim and the defendant.^[4]

As part of their investigation, State police conducted a forensic examination on the defendant's home computer. Sergeant Thomas Neff testified that, during the examination, he retrieved from the computer "four hundred or more" images "that were strangulation-oriented or had strangulation themes," as well as the ninety-second video depicting a man strangling a naked woman, apparently to her death. Neff also informed the jury that he found 978 "hits" and forty-seven files related to the term "asphyxia." One of the "hits" led to an article, accessed by the defendant, about a man whose convictions of strangling four women to death were reversed on appeal. Eight photographs, the video, and the article were admitted in evidence, as was testimony concerning the quantity of material retrieved from the defendant's computer.

2. The defense. The defendant admitted at trial that he had entered the victim's house and strangled her with a ligature.^[5] But he testified that he did so as part of a consensual sexual encounter, and without any intention to harm or kill the victim.

According to the defendant, he and the victim had sexual intercourse twice in February, 2007.^[6] He enjoyed asphyxiation as a means toward sexual gratification, and the victim had allowed him to choke her with his hands on one occasion. When he arrived at her home on the evening of June 6, 2007, the defendant intimated his desire for sexual intercourse, and the victim acquiesced. He then placed the tie around her neck and began to pull it, all the while rubbing his genitals against her body to obtain an erection.^[7] The defendant admitted that he [383] continued his efforts even after the victim knocked over a chair, fell to the floor, and warned him that her son was in the house. He claimed to have stopped only when he felt the son's presence behind him, at which point he released the victim and left the house.

3. Jury instructions on consent. Defense counsel alluded to the encounter as consensual in his opening statement and stressed that view again during his closing argument, although he did not use it as a basis to request a jury instruction that the victim's consent could act as a defense to the charges of armed home invasion and assault and battery by means of a dangerous weapon. The judge, however, raised the issue of consent during the charge conference, at which time defense counsel conceded that controlling precedent precluded such instructions. See Commonwealth v. Mahar, 430 Mass. 643, 653 (2000) (Mahar); Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (Appleby). Thus, defense counsel did not object when the judge instructed the jury, both during the initial charge and in response to a question submitted during their deliberations, that "consent is immaterial" to the charge of assault and battery by means of a dangerous weapon.^[8] Similarly, defense counsel did not object to the judge's instruction that, with regard to the offense of armed home invasion, "consent cannot be considered legally significant unless the occupant who is allowing the person in has been made aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside."

Discussion.

1. Consent as a defense.^[9] The defendant now contends that, in light of the holding in Lawrence, supra, the judge erred by not instructing the jury that consent was a defense to his conduct. In that case, the Court deemed unconstitutional a [384] Texas statute that prohibited two persons of the same sex from engaging in consensual sexual intercourse. Lawrence, supra at 577-578. Overruling its decision in Bowers v. Hardwick, 478 U.S. 186 (1986) (Bowers), the Court recognized that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," Lawrence, supra at 572, and concluded that the due process clause of the Fourteenth Amendment to the United States Constitution provided the petitioners "the full right to engage in their conduct without intervention of the government." Id. at 578. The Court also adopted the reasoning of Justice Stevens's dissenting opinion in the Bowers case: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Lawrence, supra at 577, quoting Bowers, supra at 216 (Stevens, J., dissenting).

Grasping on to this language, the defendant contends that our decision in Appleby, supra at 309-311, in which we first ruled that consent was not a defense to a charge of assault and battery by means of a dangerous weapon committed as or as part of sexual activity, is no longer valid. He argues that the Appleby holding was motivated by a public policy disapproving of certain consensual sexual behavior and, therefore, represents precisely the type of morals-based judgment the Supreme Court rejected in Lawrence. We disagree.

In Appleby, supra at 298-299, the victim alleged that the defendant, Appleby, struck him with a riding crop after he served Appleby melted ice cream. Appleby, in turn, testified that, although he did not recall the specific incident at issue, he regularly beat the victim in the context of a consensual sadomasochistic relationship, in which the victim attained sexual gratification from the physical pain Appleby administered to him. Id. at 300-302. Consequently, the defendant requested that the judge instruct the jury that "private, consensual sadomasochistic behavior is an `absolute defense to the charge of assault and battery with a dangerous weapon.'" Id. at 312. The judge declined to do so, and the jury convicted the defendant on one indictment charging him with "assault and battery with a dangerous weapon, to wit: a riding crop." Id. at 297. See G. L. c. 265, § 15A.

[385] Affirming the conviction on appeal, we rejected Appleby's underlying assertion that, as a matter of law, a party could consent to become the victim of an assault and battery by means of a dangerous weapon. Appleby, supra at 309-311. We reasoned: "The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another ...) does not prevent the State from protecting its citizens against physical harm" (emphasis in original). Id. at 311. Accordingly, we adhered to the traditional view and fit the facts of the case into the "general rule" that "to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial."^[10]Id., quoting Commonwealth v. Farrell, 322 Mass. 606, 620 (1948).

The defendant's contention that Lawrence vitiates the validity of this holding is premised on a fundamental misunderstanding of the Appleby decision, as well as a selective misreading of Lawrence itself. First, in reaching our conclusion that one could not consent to violent conduct related to or constituting sexual activity, the court recognized the existence of some "right to sexual privacy that citizens enjoy." Appleby, supra at 310. However, we reasoned that such a right "would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations." Id. Thus, the foundation from which our decision sprang anticipated the Supreme Court's conclusion in Lawrence twenty-three years later that there is some sphere of sex-related activity on which the government should not, and cannot, intrude. See Commonwealth v. Balthazar, 366 Mass. 298, 301-302 (1974). Although we proceeded to set a boundary to this protected sphere of activity, we did not do so because of any societal disapproval of the underlying sexual conduct, but rather because the government has a legitimate interest in discouraging violent behavior between and against its citizens. See Appleby, supra, citing Commonwealth v. Farrell, supra at 620-621 (Appleby [386] "was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of assault and battery with a dangerous weapon"). See also Hanna, Sex Is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239, 261 (2001) ("court in Appleby goes out of its way to suggest that this is not a case directed against homosexuals, but rather focuses on the nature of the violence itself").

At the core of his argument, the defendant suggests that in Lawrence, the Supreme Court articulated a sweeping prohibition against the regulation of consensual sexual conduct or, to state the converse, announced an absolute right of privacy in sexual affairs. As the Supreme Court of Nebraska explained in State v. Van, 268 Neb. 814, 826 (2004), the Court did no such thing: "The Lawrence Court did not extend constitutional protections to any conduct which occurs in the context of a consensual sexual relationship. Rather, the Court indicated that State regulation of [private, consensual sexual activity] was inappropriate `absent injury to a person or abuse of an institution the law protects.' [Lawrence, supra at 567]. In addition, it specifically noted that the case it was deciding did not involve `persons who might be injured [or coerced].' [Id. at 578]." We agree with this reading of Lawrence and understand the express limitations of that decision not only to align with our conclusion in Appleby, but also to anticipate and reject the very argument the defendant raises on appeal. The judge, therefore, appropriately adhered to our precedent. His instructions concerning the issue of consent were and remain correct.^[11],^[12]

2. Admission of computer materials and related testimony. [387] The defendant next claims that the judge abused his discretion by allowing the Commonwealth to introduce in evidence the eight photographs and the ninety-second video depicting women in various states of undress being strangled, ostensibly to death; the Internet article regarding the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of explicit images and Internet searches found on the defendant's home computer. According to the defendant, admission of this inflammatory and explicit evidence was erroneous because it was of minimal relevance to any issue in the case, and any probative value it may have had was outweighed by its prejudicial effect. The defendant also claims that the judge abused his discretion by not watching the video before ruling on its admissibility or allowing the jury to view it.

All evidence, including that of a violent or sexual nature, must meet the threshold test of relevancy; that is, it must have a "rational tendency to prove an issue in the case," Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977), or render a "desired inference more probable than it would have been without it." Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Copeland, 375 Mass. 438, 443 (1978). This, however, is only the first step in the inquiry, for even relevant evidence may not be admitted if "its probative value is [388] substantially outweighed by the danger of unfair prejudice." Mass. G. Evid. § 403 (2012). We entrust questions of relevancy and prejudicial effect to the sound discretion of the trial judge, whose determinations we will not disturb except for "palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001).

Here, the judge ruled that, while the computer materials as a whole were "certainly prejudicial to the defendant," they were highly probative of his intent and motive, as well as the victim's alleged consent. With regard to the photographs, article, and testimony, we see no cause to disrupt this ruling. The defendant's intent was the principal issue at trial, as the Commonwealth and the defendant sparred over whether he possessed the specific intent to kill the victim, a necessary element of the attempted murder charge. See Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 373 n.1 (2004), discussing G. L. c. 265, § 16. Thus, while the defendant alleged that he only strangled the victim as a means toward sexual gratification and without any intent to do her harm, the Commonwealth was entitled to introduce evidence revealing the scope of this fantasy and the likelihood that it included continuing the act to its natural completion — the victim's death.

Although there was scant evidence establishing a temporal connection between the defendant's consumption of these materials and the incident at issue,^[13] the contested materials fulfilled precisely this purpose. They were found stored on the defendant's computer, and the jury reasonably could have inferred that he possessed and viewed them. Contrast United States v. Curtin, 489 F.3d 935, 962 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring) (admission of five graphic, sexual stories selected from 2,998 single-spaced pages of material found on defendant's personal digital assistant failed relevancy standard of Fed. R. Evid. 401, in part because there was no evidence defendant had read them). The photographs depicted women being strangled [389] and portrayed them afterward, seemingly lifeless and in sexual positions. These images, and the testimony regarding the additional images and searches related to strangulation and asphyxiation stored on the defendant's computer, were sufficiently similar to the way in which the defendant assaulted the victim to be relevant to and probative of his sexual desire and state of mind. See Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765-766 (2007) (where defendant alleged that touching of child victim's breast was accidental, presence of photographs of fully clothed young girls, photographs of nude adult men and women, pornographic magazines containing pictures of teenage girls, and small-sized underwear in his automobile was relevant to and probative of whether touching was intentional). See also Commonwealth v. Scott, 408 Mass. 811, 820 n.9 (1990), citing Commonwealth v. King, 387 Mass. 464, 469-472 (1982) (defendant's possession of magazine article about serial killings admissible as evidence of sexual desire and contemplation of modus operandi, where circumstances surrounding manner of death were sufficiently similar). The article similarly relates to the defendant's interest in and research of strangulation murders, even though it reported an incident void of sexual overtones.

To be sure, this evidence was prejudicial to the defendant, insofar as the subject matter explored was explicitly sexual and violent. Yet, that fact alone is not enough to render the evidence inadmissible; to meet that threshold, any prejudicial effect must substantially outweigh the probative value. See Commonwealth v. Olsen, 452 Mass. 284, 294 (2008) ("That the [contested evidence] may be gruesome or have an inflammatory effect on the jury does not render [it] inadmissible as long as [it] possess[es] evidentiary value on a material matter"). The judge took deliberate and meaningful steps to mitigate the prejudicial effect of the evidence,^[14] and appropriately concluded that its probative value, which related to the core issue in dispute, was [390] comparatively high. Contrast Commonwealth v. Darby, 37 Mass. App. Ct. 650, 652, 654 (1994) (prejudicial error to admit photograph of male defendant in sexually turgid state where impotence or sexual dysfunction "was not, directly or inferentially, relevant to any issue in the case").

We separately review the judge's decision to admit the ninety-second video. This video generally portrays a nude woman being strangled. More specifically, it depicts a man dressed in black standing behind the woman, who is seated on a chair. The man asks the woman if she is ready for her "surprise," and, when she answers in the affirmative, he takes a cloth strip from his pocket, wraps it around the woman's neck, and strangles her. The woman struggles at first, but less so as time wears on. Her face begins to turn blue and, at the end, she apparently expires.^[15] The Commonwealth moved in limine to admit the video. After a hearing at which the Commonwealth described what it depicted and its relevance to the case, the judge ruled it to be admissible. As the defendant notes, the judge did not view the video himself, relying instead on the Commonwealth's description of it to render a ruling on its admissibility.^[16] This was error.

"[T]rial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors' emotions and possibly deprive the defendant of an impartial jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). Consequently, a judge must engage in a careful and reasoned assessment of any evidence proffered by the government that a criminal defendant contests; only then will the judge truly appreciate the substance and purpose of the evidence, thus enabling him fairly to balance the submission's prejudicial impact against its probative value. See United States v. Liefer, 778 F.2d 1236, 1241 (7th Cir. 1985) ("trial court must carefully assess all evidence offered by the government ... to ensure [391] that ... [it] has probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant").

Although there may be instances where a judge can discharge this duty without reviewing the contested evidence personally, this is not such a case. See United States v. Loughry, 660 F.3d 965, 971 (7th Cir. 2011), citing United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (positing that "[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice to the defendant substantially outweighs any probative value the evidence might have"). As the dissenting Justice in the Appeals Court so aptly noted, there is a particular nuance and impression of watching a video of the strangulation "death" of a woman that the Commonwealth's description, however accurate, simply could not capture. See Commonwealth v. Carey, 79 Mass. App. Ct. 587, 597-598 (2011) (Grainger, J., dissenting). Given the highly inflammatory nature of the evidence, of which he was aware, the judge ought to have recognized the great potential for prejudice it carried and taken a moment to familiarize himself with its contents. Without having done so, the judge simply "could not have fully assessed the potential prejudice to [the defendant] and weighed it against the evidence's probative value." United States v. Loughry, supra at 972. See United States v. Curtin, 489 F.3d 935, 957-958 (9th Cir. 2007) ("inflammatory... and reprehensible nature of [sexually explicit] stories, although generally relevant, is such that a district court... must know precisely what is in the stories in order for its weighing discretion to be properly exercised and entitled to deference on appeal"; "[o]ne cannot evaluate in a [Fed. R. Evid. 403] context what one has not seen or read"). This failure is itself an abuse of discretion. See Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259 n.10 (2002).

This conclusion, however, does not end our inquiry. Rather, it requires us to evaluate whether the error in failing to view the video personally before ruling on its admissibility prejudiced the defendant, if his objection was preserved, see Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), or posed a substantial risk of a miscarriage of justice, if not. See Commonwealth v. Fredette, supra at 258-259. Because the defendant did not [392] explicitly request that the judge watch the video himself and failed to raise this precise issue before the Appeals Court,^[17] the Commonwealth strenuously urges us to consider the defendant's argument under the less stringent standard of review. The defendant, in contrast, treats the evidentiary issue as though it were preserved and references the "prejudicial error" standard in his brief before us. See Commonwealth v. Flebotte, supra.

Because the error does not warrant reversal under either standard, we need not resolve this dispute. We have reviewed all of the disputed evidence and concur that the video, like the photographs, article, and Internet search testimony, was highly probative of the defendant's intent in strangling the victim. Granted, it posed a greater risk of prejudicing the defendant, but that risk did not subsume the probative value. The judge provided a curative instruction before playing it, and its content was confined to the exact act with which the defendant was charged. Contrast United States v. Curtin, supra at 938, 956-959 (although evidence relevant, admission of graphic stories portraying "adults having sex with children" constituted reversible error where judge did not read stories before admitting them and stories contained graphic descriptions of "excrescence" of different order of magnitude than acts charged). The video, and all of the contested evidence, illuminated the defendant's state of mind. Thus, it was admitted for the legitimate purpose of establishing the probability that the defendant possessed the specific intent to kill the victim, and not merely to dupe the jury into believing he was "a lewd man, and ... that a man of his character would be likely to commit the crimes charged." Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 27 (1990), quoting Commonwealth v. Ellis, 321 Mass. 669, 670 (1947).^[18]

Judgments affirmed.

[1] The jury acquitted the defendant on one other indictment charging him with assault and battery.

[2] Both the defendant and the husband testified that, prior to the defendant's arrival at the Hamilton home, the defendant had telephoned the husband and learned that he was driving to his apartment in Arlington, not to Hamilton.

[3] The defendant was charged in separate indictments with assault and battery for each of these acts. The jury acquitted him on the indictment stemming from the alleged punch to the mouth. See note 1, supra.

[4] The deoxyribonucleic acid (DNA) analyst also testified that the victim's husband and her son were excluded as possible sources of the "handler DNA" found on the necktie.

[5] The defendant testified that, although he remembered using a "cloth" ligature, he did not have a "specific recollection" of using the necktie. He nonetheless accepted the results of the forensic testing performed on the necktie, testifying at one point that he had brought the necktie with him to the house.

[6] The victim denied that she ever had sexual intercourse with the defendant.

[7] On cross-examination, the defendant conceded that he did not ask the victim specifically whether he could place the tie around her neck. But, he claimed, when he put it on her, she said, "Let's go," which he took to mean, "Let's get it over with."

[8] After proposing the language with which he intended to answer the jury question, the judge asked defense counsel whether he had an objection. Defense counsel responded, "I'd like to, but I don't think I can."

[9] We acknowledge the Commonwealth's argument that the defendant did not preserve this claim. Given our ultimate conclusion that the judge's instructions on consent were not erroneous, however, we need not resolve the parties' resulting dispute regarding the appropriate standard of review. Cf. Commonwealth v. Randolph, 438 Mass. 290, 293-297 (2002).

[10] "[B]odily harm" in this context "has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the [alleged victim]. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling." Commonwealth v. Farrell, 322 Mass. 606, 621 (1948), quoting The King v. Donovan, [1934] 2 K.B. 498, 509.

[11] Consent to enter a home — in and of itself — is also not a defense to a charge of armed home invasion. Commonwealth v. Mahar, 430 Mass. 643 (2000) (Mahar). In Mahar, supra at 650-651, the defense presented evidence that someone inside the home had opened the door and allowed the defendant to enter before the defendant, who was wielding a machete, attacked the home's occupants. We determined that "[w]hen consent to enter is allegedly given to someone, in circumstances such as presented here, the purported consent cannot be considered legally significant unless the occupant has been made aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside." Id. at 652-653. Thus, "[f]or practical purposes, permissive entry into a dwelling, and entry while armed in order to commit an armed assault, are mutually exclusive concepts because G. L. c. 265, § 18C, implies, as a matter of public policy, that an occupant of a dwelling cannot consent to allow an armed intruder like the defendant inside to commit an assault." Id. at 653, referencing Commonwealth v. Appleby, 380 Mass. 296, 310 (1980).

[12] That American courts, by and large, have condoned certain harmful and injurious conduct carried out in a sporting contest does not diminish this conclusion. See, e.g., Commonwealth v. Collberg, 119 Mass. 350, 353 (1876). Cf. Jaworski v. Kiernan, 241 Conn. 399, 408 (1997) (adopting reckless or intentional conduct standard of care for determining tort liability for injuries sustained during athletic events). To be sure, the leap between that body of law and the issue before us appears short: in both scenarios, an actor may perpetrate a seemingly violent act against his or her partner, but only in one is that actor held legally responsible for the resulting injury. Appearances, however, are often deceiving, as this leap disregards the vast gulf that exists between the organized, regulatory apparatus of sports competitions, and the intensely personal and private negotiations outlining the permissible bounds of sexual conduct. See Hanna, Sex Is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239, 247-248, 255-256, 287-290 (2001). See also Nabozny v. Barnhill, 31 Ill. App. 3d 212, 215 (1975) (referencing existence of "knowledgeable personnel," "a recognized set of rules governing the conduct of the competition," and "safety rule[s]" when assessing legal duty sports players owe one another for purposes of personal injury litigation).

[13] Sergeant Thomas Neff, who had conducted the forensic examination of the computer, testified that he had not gathered information concerning the date on which the materials at issue were viewed, although the exhibit submitted on appeal includes the notation "28 May 2007" alongside an Internet search for "asphyxiation." The defendant also testified that he had used his computer to access "pornographic and asphyxia Web sites."

[14] The judge added certain questions during empanelment designed to seat jurors capable of viewing the evidence dispassionately, and provided cautionary instructions aimed at guiding the jurors toward the "cool, rational" consideration of this evidence both during the trial and in the final charge. See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005), citing Commonwealth v. Auclair, 444 Mass. 348, 260 (2005) ("Juries are presumed to follow a judge's instructions"). See also Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 84 (2011).

[15] The defendant testified that he was familiar with the woman featured in the "video clip" (video), who was the owner of an asphyxiation-themed Web site and performed in many of its videos.

[16] The defendant does not dispute the accuracy of the Commonwealth's description. The defendant did not request that the judge review the video before ruling on its admissibility, nor did he object when the judge ruled without doing so.

[17] The issue was raised by the Appeals Court's dissenting Justice. Commonwealth v. Carey, 79 Mass. App. Ct. 587, 597-599 (2011) (Grainger, J., dissenting).

[18] Although the admission of the video added to the over-all quantity of potentially inflammatory material provided to the jury, it did not render this grouping of evidence unduly repetitive or cumulative. Each item — the eight photographs, the video, the article, and the testimony — depicted the substance of the defendant's sexual desire in a different light, and together, they revealed the depth of his interest in, and inquiry into, asphyxiation. As a whole, they constituted a relatively small number of exhibits, and the jury were not provided with the video during their deliberations. Contrast Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 59, 62-63 (2005) (prejudicial error to admit "great quantity of material," including pornographic videotape, evidence bag containing seventy-seven pornographic images, and several pornographic magazines, all of which were given to jury for perusal in jury room and none of which had any "direct bearing on the complainant's testimony").

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant, Kenny Lopez, was convicted on two indictments charging rape and one indictment charging indecent assault and battery on a person over the age of fourteen years. We granted his application for direct appellate review. The defendant claims error in the judge's refusal to give a mistake of fact instruction to the jury. He asks us to recognize a defendant's honest and reasonable belief as to a complainant's consent as a defense to the crime of rape, and to reverse his convictions and grant him a new trial. Based on the record presented, we decline to do so, and affirm the convictions.

1. Background. We summarize facts that the jury could have found. On May 8, 1998, the victim, a seventeen year old girl, was living in a foster home in Springfield. At approximately 3 P.M., she started walking to a restaurant where she had planned to meet her biological mother. On the way, she encountered the [723] defendant. He introduced himself, asked where she was going, and offered to walk with her. The victim met her mother and introduced the defendant as her friend. The defendant said that he lived in the same foster home as the victim and that "they knew each other from school." Sometime later, the defendant left to make a telephone call. When the victim left the restaurant, the defendant was waiting outside and offered to walk her home. She agreed.

The two walked to a park across the street from the victim's foster home and talked for approximately twenty to thirty minutes. The victim's foster sisters were within earshot, and the victim feared that she would be caught violating her foster mother's rules against bringing "a guy near the house." The defendant suggested that they take a walk in the woods nearby. At one point, deep in the woods, the victim said that she wanted to go home. The defendant said, "Trust me," and assured her that nothing would happen and that he would not hurt her. The defendant led the victim down a path to a secluded area.

The defendant asked the victim why she was so distant and said that he wanted to start a relationship with her. She said that she did not want to "get into any relationship." The defendant began making sexual innuendos to which the victim did not respond. He grabbed her by her wrist and began kissing her on the lips. She pulled away and said, "No, I don't want to do this." The defendant then told the victim that if she "had sex with him, [she] would love him more." She repeated, "No, I don't want to. I don't want to do this." He raised her shirt and touched her breasts. She immediately pulled her shirt down and pushed him away.

The defendant then pushed the victim against a slate slab, unbuttoned her pants, and pulled them down. Using his legs to pin down her legs, he produced a condom and asked her to put it on him. The victim said, "No." The defendant put the condom on and told the victim that he wanted her to put his penis inside her. She said, "No." He then raped her, and she began to cry. A few minutes later, the victim made a "jerking move" to her left. The defendant became angry, turned her around, pushed her face into the slate, and raped her again. The treating physician described the bruising to the victim's knees as [724] significant." The physician opined that there had been "excessive force and trauma to the [vaginal] area" based on his observation that there was "a lot of swelling" in her external vaginal area and her hymen had been torn and was "still oozing." The doctor noted that in his experience it was "fairly rare" to see that much swelling and trauma.

The defendant told the victim that she "would get in a lot of trouble" if she said anything. He then grabbed her by the arm, kissed her, and said, "I'll see you later." The victim went home and showered. She told her foster mother, who immediately dialed 911. The victim cried hysterically as she spoke to the 911 operator.

The defendant's version of the encounter was diametrically opposed to that of the victim. He testified that the victim had been a willing and active partner in consensual sexual intercourse. Specifically, the defendant claimed that the victim initiated intimate activity, and never once told him to stop. Additionally, the defendant testified that the victim invited him to a party that evening so that he could meet her friends. The defendant further claimed that when he told her that he would be unable to attend, the victim appeared "mildly upset."

Before the jury retired, defense counsel requested a mistake of fact instruction as to consent.^[1] The judge declined to give the instruction, saying that, based "both on the law, as well as on the facts, that instruction is not warranted." Because the defendant's theory at trial was that the victim actually consented and not that the defendant was "confused, misled, or mistaken" as to the victim's willingness to engage in sexual intercourse, the judge concluded that the ultimate question for the jury was simply whether they believed the victim's or the defendant's version of the encounter. The decision not to give the instruction provides the basis for this appeal.

2. Mistake of fact instruction. The defendant claims that the judge erred in failing to give his proposed mistake of fact [725] instruction.^[2] The defendant, however, was not entitled to this instruction. In Commonwealth v. Ascolillo, 405 Mass. 456 (1989), we held that the defendant was not entitled to a mistake of fact instruction, and declined to adopt a rule that "in order to establish the crime of rape the Commonwealth must prove in every case not only that the defendant intended intercourse but also that he did not act pursuant to an honest and reasonable belief that the victim consented" (emphasis added). Id. at 463, quoting Commonwealth v. Grant, 391 Mass. 645, 651 (1984). Neither the plain language of our rape statute nor this court's decisions prior to the Ascolillo decision warrant a different result.

A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea) prescribed for the offense. See, e.g., Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion"). The mistake of fact "defense" is available where the mistake negates the existence of a mental state essential to a material element of the offense.^[3] See Model Penal Code § 2.04(1)(a) (1985) ("Ignorance or mistake as to a [726] matter of fact or law is a defense if: ... the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense"). In determining whether the defendant's honest and reasonable belief as to the victim's consent would relieve him of culpability, it is necessary to review the required elements of the crime of rape.

At common law, rape was defined as "the carnal knowledge of a woman forcibly and against her will." 4 W. Blackstone, Commentaries 210. See Commonwealth v. Chretien, 383 Mass. 123, 127 (1981). Since 1642, rape has been proscribed by statute in this Commonwealth. See Commonwealth v. Burke, 105 Mass. 376, 380 (1870) (citing first rape statute codified at 2 Mass. Col. Rec. 21). While there have been several revisions to this statute, the definition and the required elements of the crime have remained essentially unchanged since its original enactment. The current rape statute, G. L. c. 265, § 22 (b), provides in pertinent part:

"Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years."

This statute follows the common-law definition of rape, and requires the Commonwealth to prove beyond a reasonable doubt that the defendant committed (1) sexual intercourse (2) by force or threat of force and against the will of the victim. See Commonwealth v. Sherry, 386 Mass. 682, 687 (1982) ("The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury").

As to the first element, there has been very little disagreement. Sexual intercourse is defined as penetration of the victim, [727] regardless of degree. The second element has proven to be more complicated. We have construed the element, "by force and against his will," as truly encompassing two separate elements each of which must independently be satisfied. See generally Commonwealth v. Caracciola, 409 Mass. 648, 653-654 (1991) (stating elements of "force" and "against his will" not superfluous, but instead must be read together). Therefore, the Commonwealth must demonstrate beyond a reasonable doubt that the defendant committed sexual intercourse (1) by means of physical force, Commonwealth v. Sherry, supra at 696; nonphysical, constructive force, Commonwealth v. Caracciola, supra at 653-655; or threats of bodily harm, either explicit or implicit, Commonwealth v. Sherry, supra ("threats of bodily harm, inferred or expressed"); and (2) at the time of penetration, there was no consent.

Although the Commonwealth must prove lack of consent, the "elements necessary for rape do not require that the defendant intend the intercourse be without consent." Commonwealth v. Grant, 391 Mass. 645, 650 (1984). See Commonwealth v. Cordeiro, 401 Mass. 843, 851 n.11 (1988) ("The Commonwealth is not required to prove either that the defendant intended the sexual intercourse be without consent or that he had actual knowledge of the victim's lack of consent"); Commonwealth v. Lefkowitz, 20 Mass. App. Ct. 513, 518 (1985) ("As the Supreme Judicial Court made clear in Commonwealth v. Grant, [supra at 649,] the crime of rape ... does not require for conviction proof that the defendant harbored a `specific intent that the intercourse be without consent'"). Historically, the relevant inquiry has been limited to consent in fact, and no mens rea or knowledge as to the lack of consent has ever been required. See Commonwealth v. Burke, supra at 377 ("The simple question, expressed in the briefest form, is, Was the [victim] willing or unwilling?"). See also Commonwealth v. Lefkowitz, supra at 519 ("the prosecution has proved rape if the jury concludes that the intercourse was in fact nonconsensual [that is, effectuated by force or by threat of bodily injury], without any special emphasis on the defendant's state of mind").

A mistake of fact as to consent, therefore, has very little application to our rape statute. Because G. L. c. 265, § 22, does [728] not require proof of a defendant's knowledge of the victim's lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victim's consent is consequently not relevant to a rape prosecution. See Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. Crim. L. & Criminology 815, 818 (1996) (mistake of fact instruction is "available as a defense to a particular charge only where the definition of the offense makes a defendant's mental state as to a particular element material").

This is not to say, contrary to the defendant's suggestion, that the absence of any mens rea as to the consent element transforms rape into a strict liability crime. It does not. See Commonwealth v. Cordeiro, 401 Mass. 843, 850-851 n.11 (1988); Commonwealth v. Grant, supra at 649-651. Rape, at common law and pursuant to G. L. c. 265, § 22, is a general intent crime, Commonwealth v. Troy, 405 Mass. 253, 260 (1989), citing Commonwealth v. Grant, supra at 649-650, and proof that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent is sufficient to maintain a conviction. See Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 325 (2000) ("At common law, rape was a `general intent' crime: The requisite intention was merely to perform the sexual act, rather than have nonconsensual intercourse").

Other jurisdictions have held that a mistake of fact instruction is necessary to prevent injustice. New Jersey, for instance, does not require the force necessary for rape to be anything more than what is needed to accomplish penetration. See In re M.T.S., 129 N.J. 422, 444 (1992) ("physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful"). Thus, an instruction as to a defendant's honest and reasonable belief as to consent is available in New Jersey to mitigate the undesirable and unforeseen consequences that may flow from this construction. By contrast, in this Commonwealth, unless the putative victim has been rendered incapable of consent, the prosecution must prove that [729] the defendant compelled the victim's submission by use of physical force; nonphysical, constructive force; or threat of force. See Commonwealth v. Caracciola, 409 Mass. 648, 653 (1991). See also Commonwealth v. Helfant, 398 Mass. 214, 220-222 (1986) ("Because the victim there was `so drunk as to be utterly senseless and incapable of consenting,' the court upheld the conviction based on proof only of `such force as was necessary to effect the [penetration]'") (citation omitted). Proof of the element of force, therefore, should negate any possible mistake as to consent.^[4] See Johnson v. State, 204 Ga. App. 369 (1992). See also Estrich, Rape, 95 Yale L.J. 1087, 1098-1099 (1986) ("The requirement that sexual intercourse be accompanied by force or threat of force to constitute rape provides a [defendant] with some protection against mistakes as to consent").

We also have concerns that the mistake of fact defense would tend to eviscerate the long-standing rule in this Commonwealth that victims need not use any force to resist an attack. See Commonwealth v. Sherry, supra at 688, citing Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). A shift in focus from the victim's to the defendant's state of mind might require victims to use physical force in order to communicate an unqualified lack of consent to defeat any honest and reasonable belief as to consent. The mistake of fact defense is incompatible with the evolution of our jurisprudence with respect to the crime of rape.

We are cognizant that our interpretation is not shared by the [730] majority of other jurisdictions. States that recognize a mistake of fact as to consent generally have done so by legislation. Some State statutes expressly require a showing of a defendant's intent as to nonconsent. Alaska, for example, requires proof of a culpable state of mind. "Lack of consent is a `surrounding circumstance' which under the Revised Code, requires a complementary mental state as well as conduct to constitute a crime." Reynolds v. State, 664 P.2d 621, 625 (Alaska 1983). Because no specific mental state is mentioned in Alaska's statute governing sexual assault in the first degree, the State "must prove that the defendant acted `recklessly' regarding his putative victim's lack of consent." Id. So understood, an honest and reasonable mistake as to consent would negate the culpability requirement attached to the element of consent. See Colo. Rev. Stat. § 18-3-402(1) (1999) ("Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault ..."); Or. Rev. Stat. § 161.115(2) (1999) ("Except as provided in [Or. Rev. Stat. §] 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence"); Tex. Penal Code § 22.021(a)(1)(A)(i) (West Supp. 2001) ("A person commits an offense if the person ... intentionally or knowingly ... causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent").

The New Jersey statute defines sexual assault (rape) as "any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration." In re M.T.S., supra at 444. A defendant, by claiming that he had permission to engage in sexual intercourse, places his state of mind directly in issue. The jury must then determine "whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable." Id. at 448.

The mistake of fact "defense" has been recognized by judicial decision in some States. In 1975, the Supreme Court of California became the first State court to recognize a mistake of fact defense in rape cases. See People v. Mayberry, 15 Cal. 3d [731] 143 (1975) (en banc). Although the court did not make a specific determination that intent was required as to the element of consent, it did conclude that, "[i]f a defendant entertains a reasonable and bona fide belief that a prosecutrix [sic] voluntarily consented ... to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of ... rape by means of force or threat." Id. at 153. Thus, the intent required is an intent to engage in nonconsensual sexual intercourse, and the State must prove that a defendant intentionally engaged in intercourse and was at least negligent regarding consent.^[5]

Other State courts have employed a variety of different constructions in adopting the mistake of fact defense. See State v. Smith, 210 Conn. 132, 142 (1989) ("We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact ... but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances"); State v. Koonce, [732] 731 S.W.2d 431, 437 n.2 (Mo. Ct. App. 1987) (construing rape statute to require defendant acted at least recklessly as to consent).

However, the minority of States sharing our view is significant. See People v. Witte, 115 Ill. App. 3d 20, 26 n.2 (1983) ("whether the defendant intended to commit the offense[s] without the victim's consent is not relevant, the critical question being whether the victim did, in fact, consent. This involves her mental state, not the defendant's"); State v. Christensen, 414 N.W.2d 843, 845-846 (Iowa 1987) ("[D]efendant's awareness of a putative sexual abuse victim's lack of consent is not an element of third-degree sexual abuse.... [I]t follows from this premise that a defendant's mistake of fact as to that consent would not negate an element of the offense"); State v. Reed, 479 A.2d 1291, 1296 (Me. 1984) ("The legislature, by carefully defining the sex offenses in the criminal code, and by making no reference to a culpable state of mind for rape, clearly indicated that rape compelled by force or threat requires no culpable state of mind"); State v. Ayer, 136 N.H. 191, 195 (1992); Commonwealth v. Williams, 294 Pa. Super. 93, 100 (1982) ("The crux of the offense of rape is force and lack of [the] victim's consent.... When one individual uses force or the threat thereof to have sexual relations with a person ... and without the person's consent he has committed the crime of rape"). See also People v. Hale, 142 Mich. App. 451, 453 (1985); State v. Elmore, 54 Wash. App. 54, 56 (1989); Brown v. State, 59 Wis. 2d 200, 213-214 (1973). This case does not persuade us that we should recognize a mistake of fact as to consent as a defense to rape in all cases. See Commonwealth v. Ascolillo, supra at 463. Whether such a defense might, in some circumstances, be appropriate is a difficult question that we may consider on a future case where a defendant's claim of reasonable mistake of fact is at least arguably supported by the evidence. This is not such a case.

Judgments affirmed.

[1] The defendant proposed the following instruction: "If the Commonwealth has not proved beyond a reasonable doubt that the defendant was not motivated by a reasonable and honest belief that the complaining witness consented to sexual intercourse, you must find the defendant not guilty."

[2] Some commentators point out that a reasonable and honest belief as to consent and a reasonable mistake of consent are "slightly different defenses." Note, Rethinking the Reasonable Belief Defense to Rape, 100 Yale L.J. 2687, 2688 n.9 (1991). "A defendant's reasonable belief of consent may be consistent with actual consent, while a reasonable mistake implies that the victim did not consent." Id. "The defense of `mistake of fact' as to consent is similar to, but not precisely coextensive with, the defense of `honest and reasonable belief' as to consent." Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. Crim. L. & Criminology 815, 815 n.1 (1996). The distinction between the two theories has little impact on this appeal, and therefore, we refer to the defendant's proposed instruction of a reasonable and honest belief as to consent as a "mistake of fact" instruction.

[3] Thus understood, a mistake of fact is not truly a defense, but rather a means of demonstrating that the prosecution has failed to prove beyond a reasonable doubt the essential elements of the crime. See Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 86 n.4 (1908) ("Such defenses as mistake and alibi, each of which denies one of the elements of guilt, must not in this connection be confounded with defenses of an affirmative character under which the defendant admits the commission of the crime but claims exemption from punishment because of some excusing fact, such as self-defense"). See also W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 5.1(a), at 406 (2d ed. 1986) ("[i]nstead of speaking of ignorance or mistake of fact, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense").

[4] In the case before us, the Commonwealth's evidence of force consisted of physical force, as described by the victim and corroborated by medical examination. The trial judge properly instructed as to the amount of force necessary to support a conviction. The judge, in essence, gave the model jury instruction as to the required element of force. We quote the model instruction, in pertinent part:

"The second element the Commonwealth must prove beyond a reasonable doubt is that the natural or unnatural sexual intercourse was accomplished by force or by threat of bodily injury and against the complainant's will. The force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence or threat of bodily harm."

[5] Since that time, the Supreme Court of California has retreated from its original holding and steadily has eroded the defense. Today, the defense is available only if there is "substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." People v. Williams, 4 Cal. 4th 354, 362 (1992). Thus, as a threshold matter, the judge, not the jury, must find that the evidence with respect to consent is equivocal. Unless this showing is made, the "jury will be foreclosed from considering evidence that the defendant honestly and reasonably believed that there was consent, even if that jury would have credited such evidence." Cavallaro, supra at 852. This requirement, in effect, virtually eliminates the mistake of fact doctrine because "[t]hose defendants who, as a factual matter, would present the strongest mistake case, by testifying to conduct that could be characterized as `unequivocal,' are precluded by the rule of Williams from presenting that defense to the jury." Id. at 838. On the other hand, a "defendant who describes an encounter in which the complainant's conduct was admittedly equivocal as to consent essentially concedes that point and is doomed to almost certain conviction." Id. at 838-839.

In the present case, there was no evidence of equivocal conduct. The complaining witness testified that she had told the defendant, repeatedly and explicitly, that she did not want any form of sexual contact; that she tried to get away from the defendant; and that she cried during the forced intercourse. The defendant testified that the complaining witness was the one to initiate intimate contact; that she participated actively; and that she suggested they get together again later that evening.

[348] Justice APPLETON delivered the opinion of the court:

A jury found defendant, Kelly J. Denbo, guilty of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) in that she persisted in an act of vaginal penetration after the victim withdrew her consent. The trial court sentenced defendant to imprisonment for seven years. She appeals on the ground of insufficiency of the evidence, arguing that the State failed to prove the victim's withdrawal of consent or her own use of force.

Defendant put her hand into R.H.'s vagina during otherwise consensual sexual relations. R.H. pushed defendant twice — harder the second time — intending to signify that she no longer consented to the sexual penetration. Defendant removed her hand from R.H.'s vagina on the second push. Looking at the evidence in a light most favorable to the prosecution, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that the first push objectively communicated to defendant a withdrawal of consent. The State failed to prove the element of force. Therefore we reverse the trial court's judgment.

I. BACKGROUND

The information charged that on September 27, 2004, defendant committed aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) "in that[,] by the use of force[,][s]he placed her fist into the vagina of [R.H.] and, in doing so, * * * caused bodily harm, vaginal trauma, to * * * [R.H.]."

At trial on April 20, 2005, the State called R.H., the adult complainant, as its first witness. Because she was extremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a nursing home, where they both worked. They developed a romantic relationship. On September 27, 2004, they both had the day off and spent it together, taking defendant's one-year-old nephew and three-year-old niece to McDonald's, Rockome Gardens, and a video store. Afterward, R.H. stayed for a cookout at defendant's house in Tuscola. Defendant drank beer while grilling the steaks, but R.H. abstained from alcohol that evening. After supper, R.H. went to defendant's bedroom "and just kept waiting and waiting and waiting" while defendant talked on the telephone. "[O]kay," R.H. thought. "[She] waited a little longer[] and * * * thought [that defendant] was going to give the kids a bath." Eventually, she told defendant she was "go[ing] to the store [to] get a diet [C]oke and would be right back." Defendant appeared to be "out of it": "she was very slow to respond and * * * slurred her words." Upon returning from the store, R.H. noticed the lights were off in the bedroom — they were on when she left — and three candles were burning. She did not see defendant. R.H. lay down, clothed, on defendant's bed. Defendant entered the bedroom. "She had a robe on," R.H. testified, "and like a ballet outfit or something. I really don't know. I was kind of hum."

Here is what happened next, according to R.H.:

"Well, I was [lying] on the bed[,] and she was on me — kind of straddled me[—]and kissing my face[,] and then she pulled me forward. She grabbed both my arms[,] and then she took off my top and my bra[,] and all of that was within — say[,] a short period of time. Then she shoved me, and she was rough. I thought, [H]um. I had no clue as to what was going on, and then she took my shorts off and my underwear off.

Q. What happened next?

[349] A. Well, then she went right through my vagina. I didn't scream. I didn't do anything. I knew the kids were asleep. Knew the kids were asleep[,] and she kept pushing me.

Q. What did you do to her?

A. And it continued[,] and then the second time I tried to push her away[,] and it was hard enough. I was able to get up. I went to the bathroom[,] and I was bleeding.

Q. Let's back up a little bit. You indicated you were [lying] on the bed. How was Kelly on you?

A. Kelly was kneeling on top of me and had my legs spread apart so she was in between my legs.

Q. You said she `went through' you. Explain what was used to go through you?

A. Right there, her hand. (Indicating)

Q. Where did she place her hand?

A. Went through the pelvic area. I tried to push her back, but she continued[,] and she just kept continuing, and then I pushed her again, and then I went to the bathroom, and I was bleeding. I came back out and was looking for her[,] and she was outside at that point and crying.

Q. You went to the bathroom and noticed you were bleeding?

A. Yes.

Q. Where was the bleeding from?

A. Well, the reason I was bleeding is because she hurt me. She used her hand to go direct[ly] through my vagina, yes, my vagina.

Q. When was the next time you saw the [d]efendant?

A. Well, I went to the bathroom — I went into the bathroom[,] and I came back out and was talking to her[,] and I asked her at that point why she did it. She said she didn't know why she hurt me. I continued to ask her. I stayed at Kelly's because I needed an answer from her as to why she hurt me."

Because R.H. was deaf, she and defendant often communicated with one another in writing. R.H. offered — and the trial court admitted into evidence, over defendant's foundational objection — eight handwritten letters R.H. had received from defendant. According to R.H., defendant wrote People's exhibit No. 1 on September 27, 2004, shortly after the incident. It says: "I will let you know tomorrow night. Is [illegible] us. Okay[?] I love you. I'm taking a shower."

R.H. testified she received People's exhibit No. 2 on September 28, 2004. That letter reads as follows:

"I know that no amount of apologies [is] going to be okay. I am sorry that that happened. Okay[?] I can't believe that I could do what someone did to me. It makes me fucking sick to my stomach[,] and I am sorry. I am worried. I do want you to be okay. I should have said something sooner. I've done wrong[,] and it will never be forgiven or forgotten. I am truly sorry[,] though. Be careful. I don't want to lose you. That's not what I want. I scared you, yes. I can apologize forever for that. There [is] no amount of apologies I can give you. Yes, you are to[o] good for me. I love you[,] and I hurt you. This is something that can't be forgiven. I'm so sorry. I never meant for this to happen. We probably need some time apart for awhile. I need to straighten out my scary side. Med[ication]s or something. I don't want to break up. Maybe I need to get rid of [the] scary side of me. I know I have one. We need time apart — okay[?] I'm sorry it had to end this way. I will not quit [because] I love my residents. I am [350] sorry I hurt you last night. I don't want to hurt anyone else that way again[,] [including] you. I'm sorry. I swear to you that I did not hear you say no. I am not the kind of person that does this. I care that I hurt you. I'm sorry you're shocked. I'm sorry I did this. I'm just sorry. Okay[?] I knew you can't take me back. That's understandable. There [is] no amount of sorrys I can give you. I'm sorry. Please let me know if you're going to send me to jail or tell work. Okay[?] So I can quit and go elsewhere. I am sorry about what happened." (Emphasis in original.)

R.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. People's exhibit No. 3 reads as follows:

"I do love you and care for you. I'm very worried about you. I know you said not to. I'll do it anyway. My feelings about what I've done are mixed. I should die for what I've done. I feel like I should not be with you because of this. I want to be with you. But after what I've done[,] I feel horrible, sick. I don't feel like I deserve you. We need time[,] okay[?] I'm going to have to feel right about myself before I can go on with you[,] okay[?] Please understand. I do want you[,] okay[?] I just need time to fix myself."

People's exhibit No. 4 appears to consist of three letters. Here is the first one:

"I did read your note. I do get mean sometimes, when I'm drinking. Not always[,] though. And I'm sorry that I hurt you when I do. I do realize that I've done it[,] and I'm sorry. It makes me feel like shit when I do[,] and no amount of apologizing can make up for it. I only hope I can change and give you the life and love you want[,] because I want it with you. I love you. Very much. I'll try to show it better. I'm learning[.] I'm thinking that I love you and I don't want to hurt you anymore. I do have a temper. It comes out quick[ly]. I'll learn to deal with it[,] okay[?] I love you. I don't want to lose you[,] okay[?] Right now I'm by myself on [the] west hall[,] and it's a lot of work right now. I'm sorry I'm late writing you. I'll do my hardest to please you forever. You are my only true love. I will always love you. Let me know if you are coming over tonight."

The second letter in People's exhibit No. 4 reads as follows:

"I know it seems like I don't care. But I do. It just so happens that I am under a great deal of stress. The kids, my parents, brother. My job. I have blood in my bowels because I am under too much stress. Then I broke a blood vessel in my eye. It[']s been a very stressful week. Also I hurt you. That[']s just making it all the more stressful. I do care. But I'm at my stress point right now. I do love you. But I asked [for] time away to sort out my life. I need to unstress myself. I[']m getting to the point of saying fuck it to life and go[ing] away. But I know I can't. I just need time[,] okay[?] Not forever. I'm sorry I haven't been nice. I'm just stressed out. A lot of crap is piling on me[,] and I'm sorry for taking it out on you. [The] [r]eason I touched you like that down [there] is I thought you would be okay with that kind of lovemaking. I was way to[o] rough. I[']m never like that[,] okay[?] I should have asked you about it. I was to[o] rough when I should have been gentle with you[,] and I take full responsibility for what I've done. Now all you can do is give me time and space. I love you[,] okay[?]"

In the third letter in People's exhibit No. 4, defendant said:

[351] "I am so sorry I hurt you that way. I can't believe I was capable of doing that to anyone. What exactly do they have to do to fix you[?] I am responsible for this. I feel the need to be killed in some horrible way right now. I feel that I don't need to be forgiven, ever. I am very sorry this happened. We do need time because I need to fix my temper, drinking. Basically, myself. I am truly sorry that I did this. I love you and did not want to hurt you. Please believe me when I say it wasn't intentional. I am sorry. I know we need to talk. We will. I need time to sort out what you just told me. I am sorry."

People's exhibit No. 5 says: "I really do hope you[']r[e] not upset with me. I want you on Sunday and Monday. Is that okay[?] I won't go if you[']r[e] going to be upset. I love you and wanna a few days with you. But I promised my cousins. Don't be angry."

The final letter, People's exhibit No. 6, says: "First of all[,] I know in my heart I did not rape you. I did[,] however[,] make you bleed[,] and for that I'm sorry."

The prosecutor asked R.H. the following:

"Q. Was this touching without your consent?

* * *

A. No, no[,] I did not consent to that. I did not consent to that."

On cross-examination, defense counsel asked R.H.:

"Q. You said earlier, I think, that Kelly was kneeling on the bed[,] on top of you?

A. I had my legs spread apart[,] and she was in between them, between my legs.

Q. You said she removed your top and your bra?

A. Yes.

Q. Did you try to stop her from doing that?

A. No.

Q. And you said she removed your pants and underwear?

A. Yes, yes[,] that is correct.

Q. Did you try to stop her from doing that?

A. No.

Q. I think you said[,] in your direct testimony[,] that then Kelly [']went['] — and your words were[][']right through my vagina[']?

A. That is correct.

Q. Could you explain what you mean by that[,] exactly?

A. Well, the hand itself went right through my privates. I tried to push her back, but she continued[,] and then I pushed her again[,] and then I was able to get up and go to the bathroom[,] and that is when I noticed I was bleeding."

R.H. admitted spending the rest of the night with defendant in her bed. She admitted having sex with defendant on three occasions before the incident. These sexual encounters were all in defendant's bedroom. After September 27, 2004, R.H. visited defendant's house one time. It was defendant's idea that she come over, but when she saw that defendant had been drinking, she went home.

On redirect examination, the prosecutor asked R.H. why she did not immediately leave the premises after defendant pushed her hand through her vagina. R.H. answered: "Because I wanted to know why she had hurt me[,] and I had no clue. I never * * * could understand why." The trial adjourned for the day.

On April 21, 2005, the State called a Tuscola police officer, Richard A. Lamb, as its next witness. He testified he interviewed [352] R.H. on November 9, 2004. The interview was originally scheduled to occur two weeks earlier, but he had to cancel that appointment because of difficulty finding an interpreter. "[D]ue to the time frame," the letters (People's exhibit Nos. 1 through 6) were the only physical evidence the police collected in the case.

The State then called Marlene Kremer, a family practice physician from Sarah Bush Lincoln Health Center in Mattoon. She testified that on September 30, 2004, she received a message at her office requesting that she telephone R.H.'s roommate, Donna Goad. "The message said that [R.H.] had been raped and was very upset and she needed an appointment." Kremer returned the telephone call and scheduled an appointment for that same day. R.H. arrived at the office with Goad, looking "very anxious and upset." The prosecutor asked Kremer:

"Q. How did she describe that she had been injured?

A. She said that three days before, her long[]time girlfriend had — was intoxicated[] and had forced her to have — using some type of an object, which I do not know what the object was, had repeatedly thrust this object into her vagina. Then she was able to fight her off and left."

The wall of R.H.'s vagina "was very abraded. It was kind of like a rug burn. There were no obvious lacerations. There was no bleeding at the time of this exam, but it was just very abraded, irritated" — as if the vagina had suffered from "[e]xcessive friction." Kremer would have expected R.H.'s vagina to look like this if R.H.'s girlfriend had done what R.H. said. It was possible that the vagina bled at the time of the injury.

The prosecutor asked Kremer whether posttraumatic stress syndrome was "accepted as a behavioral condition that [could] result from sexual assault" and whether she had "dealt with" this condition in the course of her profession. To both questions, Kremer answered yes. The prosecutor asked her to describe the "model characteristics" of the syndrome. Kremer answered:

"It's a person who has either witnessed or been a victim of a severely traumatic event, where they felt very hopeless, helpless — had no control and[,] subsequent to that[,] * * * they have either [sic] flashback recollections. They avoid situations or things that make them recall that event. They have changes in their behavior, either [sic] difficulty sleeping, you know, more irritable, those type[s] of behaviors."

Kremer continued treating R.H. after September 30, 2004 — who, in fact, was her patient before then. Kremer saw her again on October 22, 2004. At that time, she diagnosed posttraumatic stress disorder. R.H. was "having crying spells. She was still able to go to work[] but was otherwise not doing much of anything else." She saw R.H. again on November 12, 2004, and found her to be still suffering from the disorder. She saw no symptoms of the disorder before September 30, 2004.

The State rested, and defendant moved for a directed verdict on the ground that the State had failed to prove "the use of force or threat of force." See 720 ILCS 5/12-14(a), 12-13(a)(1) (West 2004). Defense counsel argued: "All of the evidence points to the fact that this was a voluntary interaction. It occurred in Ms. Denbo's home, in her bedroom, on her bed, where the alleged victim came in and la[y] down and voluntarily * * * allowed Ms. Denbo to undress her * * * and then engaged in a sexual act that she didn't object to." The prosecutor responded that because R.H. [353] objectively showed her lack of consent by pushing defendant and defendant nevertheless continued to ram her hand into R.H.'s vagina, the State had proved the element of force. The trial court denied the motion for a directed verdict.

Defendant called her mother, Nancy Denbo, as her first witness. Denbo testified she lived in a small two-bedroom house on Overton Street in Tuscola. In the summer of 2004, R.H. began visiting defendant at Denbo's house two or three times a week. On September 27, 2004, Denbo worked from 2 to 10 p.m. at the nursing home. After coming home between 10:30 and 10:45 p.m., she took a shower and watched television with her husband, her son, her grandchildren, defendant, and R.H. Nothing unusual happened that evening after she got home; she was aware of no disturbance. Because "the kids" (apparently, defendant's nephew and niece) typically "g[o]t up pretty early," Denbo probably rose between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in the house, and nothing seemed amiss. After breakfast, Denbo and R.H. "drank coffee out in the carport" for a couple of hours while the children played outside. R.H. left between 11 and 11:30 a.m. because Denbo had to go in and start getting ready for work. After September 27, 2004, R.H. came over twice for dinner and even stayed overnight sometime in October 2004.

Defendant called Goad as her next witness. She testified she lived in Atwood with her son and R.H. For the past four years, Goad had been a dietary supervisor at the nursing home. She was R.H.'s boss. Goad was only casually acquainted with defendant; she knew that defendant worked at the nursing home and had a relationship with R.H. The evening of September 28, 2004, Goad saw R.H. at home and noticed nothing unusual about her behavior at that time. On September 29, 2004, R.H. came to work an hour early to speak with Goad. R.H. did not finish her shift that day; "she * * * said that she was bleeding." She also missed work on September 30, 2004, because "she was still having problems and she wasn't going to be able to work." Goad explained to her the nursing home's policy: "if you miss two days because of illness, * * * you have to go to the doctor." Therefore, on September 30, 2004, Goad accompanied R.H. to the doctor's office. A week or two later, at R.H.'s request, Goad set up an appointment for her with a counselor.

The defense next called Mary Burton, who testified that she lived in Tuscola, across the street from defendant. She had seen R.H. visiting at defendant's residence during the summer of 2004, when they were dating. R.H. was there "[u]p to four or five times a week, given their schedule at work." R.H. typically arrived in her white "mini-truck."

Defendant then took the stand. She testified that she lived with her mother, brother, nephew, and niece in Tuscola. She met R.H. around the end of May 2004, and by the end of June 2004, they were lovers. From June until October 2004, R.H. visited defendant's house three or four times a week and usually stayed overnight. On September 27, 2004, R.H. came over for a cookout. Defendant had two beers that evening but did not become intoxicated. After dinner, she and defendant watched a couple of movies with the children. Defendant then bathed and dressed the children and handed them over to her brother's care so that she could be alone with R.H. Defendant took a shower around 9 or 9:30 p.m., and while R.H. was at the store, she set the scene in the bedroom: lit the candles, put on some music, and turned off the lights. Upon returning, R.H. lay on the bed. Defendant [354] entered the bedroom, wearing a robe and a silky negligee — "a white[,] strange teddy thing." She lay down next to R.H. and talked with her for a few minutes. (R.H. could understand her if she raised her voice.) Then they "started getting intimate," "kissing and touching." Defendant helped R.H. remove her top and bra and then her shorts and boxer underwear.

Defendant testified:

"We were having — I was giving her oral sex[,] and I was[,] I guess[,] down in that area, and I began to digitally[,] with two fingers, insert them into her vagina[,] and we had sex relations that way.

Q. Okay. Now[,] at that point[,] what did [R.H.] do, if anything?

A. Well, I guess she was enjoying it. She didn't tell me to stop. She didn't push me away.

Q. During this time, up to this point, had she said anything to you?

A. Not that I can recall.

Q. What happened next[,] then?

A. I guess she was done, and my head was still in that particular area, so she nudged my shoulder. And I didn't hear her the first time, because music was on and my head was in an uncompromising [sic] position.

Q. Okay.

A. But she nudged my shoulder[,] and I looked up[,] and she said she was finished[,] and I said okay, and at that time she went to the bathroom.

Q. Okay.

A. She came back and said she was bleeding a little. She said she was hurting[,] and I apologized. I didn't know that I might have hurt her a little bit digitally, doing that to her.

Q. How did she appear to you then?

A. She was a little scared about the bleeding. She was bleeding a little bit. I do admit that. But she was okay. We talked, and then we wound up going to bed not too long after[ward].

Q. Did she, during the time you were having sexual relations together, did she ever scream or cry out, or anything?

A. No, not that I can recall.

Q. And did she stay there the night with you?

A. Yes.

Q. And slept there with you in your bed?

A. Yes."

R.H. was still in bed with defendant the next morning when the children leaped onto the bed and awaked them. After defendant made breakfast for the children and got them dressed, she and R.H. went outside with defendant's mother and drank coffee.

According to defendant, R.H. spent the night at defendant's house on two occasions after September 27, 2004. Her relationship with R.H. deteriorated, and defendant broke it off about the second week in October 2004. Defendant disagreed that all of the letters in People's exhibit Nos. 1 through 6 pertained to the incident of September 27, 2004. According to her, some of the letters predated the incident. She claimed to have written People's exhibit Nos. 1, 2, and 5 during the summer of 2004 (before September). She claimed to have written People's exhibit No. 3 at work around September 30, 2004, and People's exhibit Nos. 4 and 6 right after September 27, 2004. Defendant denied forcibly having sex with R.H.

On cross-examination, defendant testified that when she gave oral sex to R.H. in the bedroom on September 27, 2004, R.H. had an orgasm. Defendant denied using force when digitally penetrating her, although she remarked that "fingernails [could] scrape." Defendant rested.

[355] In its case in rebuttal, the prosecutor presented People's exhibit No. 7, a record of defendant's conviction in Georgia for deposit account fraud. The State also recalled R.H., who denied that defendant performed oral sex on her the night of September 27, 2004, and denied having an orgasm when defendant digitally penetrated her that night. According to R.H., she visited defendant's house once after September 27, 2004: on October 1 or 2, 2004. Defendant telephoned her, and R.H. came over and stayed with the children for about 10 minutes, until she perceived that defendant had been drinking, whereupon she left. R.H. denied spending the night at defendant's house anytime after September 27, 2004. The State rested, and the jury found defendant guilty of aggravated criminal sexual assault.

On May 25, 2005, the trial court sentenced defendant to 7 years' imprisonment, with credit for 66 days, followed by 3 years of mandatory supervised release.

This appeal followed.

II. ANALYSIS

The State charged defendant with aggravated criminal sexual assault within the meaning of section 12-14(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14(a)(2) (West 2004)). That section provides as follows:

"(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during * * * the commission of the offense:

* * *

(2) the accused caused bodily harm * * * to the victim * * *." 720 ILCS 5/12-14 (a)(2) (West 2004).

Thus, to commit aggravated criminal sexual assault, one must commit criminal sexual assault. According to the information, defendant committed criminal sexual assault within the meaning of section 12-13(a)(1) of the Code (720 ILCS 5/12-13(a)(1) (West 2004)). That section provides as follows:

"(a) The accused commits criminal sexual assault if he or she:

(1) commits an act of sexual penetration by the use of force or threat of force[.]" 720 ILCS 5/12-13(a)(1) (West 2004).

"Sexual penetration" includes "any intrusion, however slight, of any part of the body of one person * * * into the sex organ * * * of another person." 720 ILCS 5/12-12(f) (West 2004). Section 12-12(d) defines "force or threat of force" as follows:

"(d) `Force or threat of force' means the use of force or violence, or the threat of force or violence, including but not limited to the following situations:

(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or

(2) when the accused has overcome the victim by use of superior strength or size, physical restraint[,] or physical confinement." 720 ILCS 5/12-12(d) (West 2004).

"Force," within the meaning of sections 12-12(d) and 12-13(a)(1) of the Code, does not mean the force inherent to all sexual penetration — for example, the exertion of the hand in the act of pushing into the vagina — but physical compulsion, or a threat of physical compulsion, that causes the victim to submit to the sexual penetration against his or her will. People v. Haywood, 118 Ill.2d 263, 274-75, 113 Ill. Dec. 236, 515 N.E.2d 45, 50-51 (1987); [356] People v. Kinney, 294 Ill.App.3d 903, 908, 229 Ill.Dec. 394, 691 N.E.2d 867, 870-71 (1998).

In its case in chief, the State has the burden of proving the element of force beyond a reasonable doubt. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50. By proving force, the State necessarily proves nonconsent, for "if * * * one was forced to perform an act, it follows that [one's] act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly [one] has not been forced." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; see also People v. Roberts, 182 Ill.App.3d 313, 317, 130 Ill.Dec. 751, 537 N.E.2d 1080, 1083 (1989). The defendant may raise the defense of consent to rebut the State's evidence of force. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; 720 ILCS 5/12-17(a) (West 2004); see also Roberts, 182 Ill.App.3d at 318, 130 Ill.Dec. 751, 537 N.E.2d at 1084 (characterizing consent as a defense but not as an affirmative defense). Section 12-17(a) of the Code provides as follows:

"(a) It shall be a defense to any offense under [s]ection 12-13 through 12-16 of this Code [(720 ILCS 5/12-13 through 12-16 (West 2004))] where force or threat of force is an element of the offense that the victim consented. `Consent' means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent." 720 ILCS 5/12-17(a) (West 2004).

If the defendant raises the defense of consent, "the State has a burden of proof beyond reasonable doubt on the issue of consent as well as on the issue of force." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50.

In its brief, the State concedes that R.H. "implicitly consented to some sort of penetration by allowing defendant to undress her, to spread her legs apart, and to position herself between [R.H.'s] legs." We agree with that concession. When defendant sexually penetrated R.H. by inserting her fingers or hand into R.H.'s vagina, she did so with R.H.'s consent — and, therefore, not by "force," as that term is defined in section 12-12(d) of the Code (720 ILCS 5/12-12(d) (West 2004)). One may infer that in performing the act of penetration, defendant was — as she admitted in one of her letters — "to[o] rough when [she] should have been gentle." Nevertheless, R.H. consented to the penetration itself; therefore, defendant did not accomplish the penetration by overcoming R.H.'s will with force or the threat of force.

The State contends this is a case of postpenetration aggravated criminal sexual assault. On July 25, 2003, the General Assembly passed Public Act 93-389 (Pub. Act 93-389, § 5, eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding subsection (c) to section 12-17 of the Code (720 ILCS 5/12-17 (West 2004)). Section 12-17 is entitled "Defenses," and (as we have discussed) subsection (a) provides that consent is a defense to criminal sexual assault and to other sex crimes in which force or the threat of force is an element. 720 ILCS 5/12-17(a) (West 2004). Subsection (c) limits or clarifies the defense in subsection (a) by making the consent effective only up to the withdrawal of consent: "A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of [357] that sexual penetration or sexual conduct." 720 ILCS 5/12-17(c) (West 2004).

In the minds of some commentators, the concept of withdrawal of consent makes the element of force problematic. In re John Z., 29 Cal.4th 756, 764, 60 P.3d 183, 188, 128 Cal.Rptr.2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh, The Collusion of Consent, Force, & Mens Rea in Withdrawal of Consent Rape Cases: The Failure of In re John Z., 26 Whittier L.Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuating "No Means No" Rape Law, 29 Vt. L.Rev. 215, 248 (2004); Note, Acquaintance Rape & Degrees of Consent: "No" Means "No," But What Does "Yes" Mean?, 117 Harv. L.Rev. 2341, 2363 (2004). If, initially, A sexually penetrates B with B's consent (and, therefore, without force) but merely remains inside of B after B says, "Stop, I don't want to do this any longer," where is the force? "To prove the element of force is implicitly to show nonconsent" (Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50); but, in a case of postpenetration criminal sexual assault, it is unclear that proving the withdrawal of consent implicitly proves force. One writer has drawn a distinction between "[p]ostpenetration rape [as] a doctrine of unwanted sex" and "prepenetration rape [as] a doctrine of forced sex." 117 Harv. L.Rev. at 2363. Another writer argues: "[O]nce the victim unequivocally revokes consent, the force required to accomplish continued penetration is sufficient to complete the crime." A. Davis, Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape Law, 34 Stetson L.Rev. 729, 757 (2005). The question is whether mere persistence in sexual penetration, after the withdrawal of consent, can serve as a "proxy" for force (117 Harv. L.Rev. at 2363), considering that "force" must be something more than the force inherent to sexual penetration (Haywood, 118 Ill.2d at 274-75, 113 Ill.Dec. 236, 515 N.E.2d at 50-51; Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 870-71). See State v. Robinson, 496 A.2d 1067, 1070 (Me.1985) ("We emphasize that the ongoing intercourse, initiated[,] we here assume[,] with the prosecutrix's consent, did not become rape merely because she revoked her consent. It became rape if and when the prosecutrix thereafter submitted to [the] defendant's sexual assault only because `[force or the threat of force made her] unable to physically repel the [defendant] or [too frightened to do so]'").

Perhaps, as a practical matter, this question will seldom arise because if B wishes to have sex no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical posture, A prevents B from disengaging — for example, by continuing to lie on top of B (John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786) — A thereby forces B to continue with the sexual penetration. In John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786, for example, the California decision that inspired section 12-17(c) (720 ILCS 5/12-17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No: Current Issues, Trends, & Problems in Post-Penetration Rape, 25 N. Ill. U.L.Rev. 151, 164-65 (2004)), the defendant constrained the victim to continue with sexual penetration, when she was on top of him, by grabbing her hips and pulling her back down when she tried to pull away. Then he rolled her over so he was on top of her. John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. "`No,'" she said, "`I need to go home,'" but he persisted in sexual intercourse for another minute or minute and a half, all the while asking for more time. John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. The victim testified: "`[H]e just stayed inside of me and kept like basically forcing it on [358] me.'" John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. In affirming the conviction, the Supreme Court of California held: "[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection." (Emphasis added.) John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. She no doubt felt "forced" in both positions — not only when the defendant grabbed her hips and pulled her down but also when he was on top of her. One can, in a manner of speaking, passively force someone to continue with the sex act by using one's own bodily inertia to prevent the partner from disengaging. This would be force beyond that inherent to the sex act itself.

One may reasonably infer that R.H. pushed defendant because disengagement was, for her, physically impossible until defendant withdrew. Defendant withdrew when R.H. pushed her a second time. If an aggravated criminal sexual assault happened at all, it happened during the very short duration between the first and second push, when defendant, by not moving, prevented R.H. from immediately disengaging. Even though, subjectively, R.H. no longer consented, her withdrawal of consent was ineffective until she communicated it to defendant in some objective manner (see People v. Carlson, 278 Ill. App.3d 515, 520, 215 Ill.Dec. 282, 663 N.E.2d 32, 36 (1996)) so that a reasonable person in defendant's circumstances would have understood that R.H. no longer consented (see Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 871). Defendant used force on R.H. only if the first push operated as an objective withdrawal of consent.

Looking at the evidence in a light most favorable to the State, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that a reasonable person, in defendant's circumstances, would have understood that initial push as a withdrawal of consent. See People v. Schott, 145 Ill.2d 188, 203, 164 Ill.Dec. 127, 582 N.E.2d 690, 697 (1991). According to a letter from defendant that the State presented at trial, R.H. was capable of talking ("I swear to you that I did not hear you say no"). R.H.'s excuse was that she did not want to wake the children by screaming. Even if one credited that excuse, it would not solve the problem of an uncommunicated withdrawal of consent. R.H. could have said no — and, evidently, defendant expected her to say no, or at least say something, if she wanted defendant to stop the sexual penetration. This expectation seems reasonable. R.H. did not say no or stop. Instead, she pushed defendant. The problem is, people push one another during sexual congress. We do not mean to suggest that a push can never signify nonconsent or a withdrawal of consent. In fact, the second push here was clearly made with enough force to both be distinguished from a caress and to effectively communicate the withdrawal of consent. "`Force' and `consent' simply do not have static meanings. The significance of various factors — a cry for help, level of resistance, attempt to escape — depend[s] on the circumstances of each case." Kinney, 294 Ill.App.3d at 909-10, 229 Ill.Dec. 394, 691 N.E.2d at 871 (Knecht, J., specially concurring). Under the circumstances of this case, a single push to the shoulders, without more, cannot serve as an objective communication of R.H.'s withdrawal of consent.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court's judgment.

Reversed.

[359] McCULLOUGH, J., concurs.

TURNER, J., dissents.

Justice TURNER, dissenting:

I respectfully dissent.

When a defendant challenges the sufficiency of the evidence, the reviewing court does not retry the defendant. People v. Janik, 127 Ill.2d 390, 401-02, 130 Ill.Dec. 427, 537 N.E.2d 756, 761 (1989). The jury possessed the responsibility to choose between competing versions of fact, assess the witnesses' credibility, draw inferences from the evidence, and decide whether the evidence as a whole ultimately proved defendant to be guilty of the charged offense beyond a reasonable doubt. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761; People v. Anderson, 325 Ill.App.3d 624, 634, 259 Ill.Dec. 603, 759 N.E.2d 83, 92 (2001). To avoid intruding upon the jury's prerogative as the finder of fact, we are to use a deferential standard of review. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761. Thus, looking at all the evidence in a light most favorable to the prosecution, we address whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Anderson, 325 Ill.App.3d at 634, 259 Ill. Dec. 603, 759 N.E.2d at 92.

A rational trier of fact could have found (1) the first push sufficiently informed defendant of R.H.'s withdrawal of consent and (2) defendant did not immediately disengage. It is a reasonable conclusion defendant wrote all of the letters following the September 27, 2004, incident. In these letters, she confesses wrongdoing, deplores the "scary side" of herself, admits that she "get[s] mean sometimes," and asks R.H. if she is going to "send [her] to jail." The jury could have reasonably inferred defendant knew, from the start, at the very moment of penetration, she was being "way to[o] rough" and that when R.H. first pushed her (signifying her withdrawal of consent), defendant already knew she did not consent to this violent manner of penetration. Because someone had once done the same thing to defendant (as she revealed in People's exhibit No. 2), defendant knew she was inflicting excruciating pain upon R.H. and that the first push meant "Stop!" Nevertheless, she continued ramming her hand into R.H.'s vagina until R.H. succeeded in pushing her away. Looking at the evidence in a light most favorable to the prosecution, I conclude a rational trier of fact could have found the elements of aggravated criminal sexual assault beyond a reasonable doubt.

[561] Murray W. Bell of Murray W. Bell, PC, Davenport, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

LARSON, Justice.

John Michael Bolsinger appealed his convictions of third-degree sexual abuse under Iowa Code section 709.4(1) (2001), sexual exploitation by a counselor under Iowa Code section 709.15(2), and sexual misconduct with juvenile offenders under Iowa Code section 709.16(2). Bolsinger [562] was sentenced to a combination of concurrent and consecutive sentences totaling a term not exceeding thirty-seven years. The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse his conviction for sexual abuse, affirm the remainder of the convictions, and remand.

I. Facts and Prior Proceedings.

Bolsinger was the program supervisor of a highly structured state facility for delinquent boys, the Wittenmyer Youth Center, in August 2001 when the Iowa Department of Human Services (DHS) conducted an investigation into allegations of sexual abuse by Bolsinger. The investigation revealed, through interviews with past and present youth at the camp, that Bolsinger would take boys into a private room and touch their genitals, saying he was checking for bruises, scratches, hernias, and testicular cancer. The testimony of the boys revealed that Bolsinger asked permission to touch them in this way and that he did not appear to them to be gaining any sexual gratification from the touching. The boys testified that they were not aware that they were being touched in a sexual manner, and they would not have consented if they had known the true reason for the touching. However, they also testified that, given the nature of the structured program, it was almost impossible for them to make choices of their own or to refuse the request of an instructor.

Following the DHS investigation, Davenport police officers obtained a search warrant for Bolsinger's home and seized a number of items, including the defendant's home computer. The computer's hard drive contained, among other things, numerous stories involving unidentified males engaging in sex acts with each other. Prior to trial, Bolsinger filed a motion to suppress evidence seized from his home, which was denied by the court.

II. Issues.

Bolsinger's appeal raises three issues: (1) the court's interpretation of Iowa Code section 709.4(1) (third-degree sexual abuse), (2) its denial of his motion to suppress, and (3) its refusal to direct verdicts in his favor on all counts on the basis his acts were not "sex acts" under the Code. Bolsinger raises other issues, which we do not expressly discuss because their resolution is subsumed in other holdings in this case.

III. Interpretation of Iowa Code Section 709.4(1) (Third-Degree Sexual Abuse).

Under Iowa Code section 709.4,

[a] person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:

1. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.

In applying the "force or against the will" language of section 709.4, the court submitted Instruction No. 21:

Concerning [the third-degree sexual abuse counts] the State must prove that the defendant committed a sex act "by force or against the will" of the alleged victim in that Instruction. In order to do so, however, the State does not have to prove that the alleged victim physically resisted the defendant's acts. The force used by the defendant does not have to be physical. An act may be done "by force and against the will" of another if the other's consent or acquiescence is procured by:

1. threats of violence; or

2. deception, which may include deception concerning the nature of the act or deception concerning the defendant's [563] right to exercise authority over the other under the circumstances.

You may consider all of the circumstances surrounding the defendant's act in deciding whether the act was done by force or against the will of the alleged victim.

(Emphasis added.)

The court stated that its authority for giving this instruction was found in Iowa Code section 709.5, which provides:

Under the provisions of this chapter it shall not be necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.

(Emphasis added.) The court also relied on the case of State v. Vander Esch, 662 N.W.2d 689 (Iowa Ct.App.2002). In Vander Esch the defendant, an owner of a pizza restaurant, employed teenage boys. He informed two of these employees that he was doing a scientific research project and asked them to provide him semen samples for this purpose. He promised to pay $50 for the samples should their sperm count be high enough. Vander Esch was present during the procedure and took possession of the semen samples. Vander Esch, 662 N.W.2d at 691. Vander Esch was not authorized by any scientific body to collect semen samples, and the victims indicated that they would not have consented to these acts had they known that no scientific research existed. Id. Vander Esch was charged with four counts of third-degree sexual abuse under Iowa Code section 709.4(1). He argued that the definition of sexual abuse, as set out in Iowa Code section 709.1(1), set forth the only means recognized in Iowa to negate consent and that neither fraud nor deceit did so. Id. at 691.

Our examination of the issue must begin with Iowa Code section 709.1(1), which defines sexual abuse and provides that certain circumstances will vitiate a victim's consent:

Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:

1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.

In Vander Esch the district court ruled that, in view of the fact that Iowa Code section 709.5 permits the consideration of all surrounding circumstances, section 709.1(1) is not exclusive and fraud and deception may vitiate consent. The court of appeals upheld that decision, classifying the fraud in question as fraud in fact, as opposed to fraud in the inducement (concepts we later discuss), and therefore, the act was done "by force or against the will" of the boys.

Bolsinger argues that the acts which occurred were hand-to-genital contact, which was expressly agreed to by the boys. He argues that his unexpressed purpose, apparently sexual gratification, was collateral to the act itself and, therefore, constituted fraud only in the inducement. As such, the fraud does not vitiate consent, according to him. Bolsinger also argues that Vander Esch, relied on by the court of appeals (which divided four to four on the question) and the district court in the present case, was incorrectly decided and should be overruled. Bolsinger argues [564] that Vander Esch erroneously characterized the consent to semen sampling as being produced by fraud in fact, and therefore, any consent was vitiated.

If an act is done that is different from the act the defendant said he would perform, this is fraud in fact. If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement. Fraud in fact vitiates consent; fraud in the inducement does not. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law ch. 9, § 3, at 1079 (3d ed.1982) [hereinafter Perkins & Boyce]. In other words,

if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).

Id.; accord Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at 506 (2d ed.2003) (stating that "fraud in the factum involves a form of deception which results in a misunderstanding by the victim as to the very fact of the defendant's conduct").

Cases illustrating fraud in fact have often involved victims undergoing medical examination or treatment. In many cases, the victims consented to an examination, only to find that the doctor engaged in sex acts. See, e.g., People v. Ogunmola, 193 Cal.App.3d 274, 238 Cal.Rptr. 300, 304 (1987) (patient who consented to gynecological examination was in fact subjected to a sex act; consent held to be vitiated); McNair v. State, 108 Nev. 53, 825 P.2d 571, 575 (1992) (sex acts under pretense of performing medical examination held to be against the will of the victim). See generally regarding fraud in fact in "doctor" cases, Jay M. Zitter, Annotation: "Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished Under the Pretext of, or in the Course of, Medical Treatment," 65 A.L.R.4th 1064 (1988); 75 C.J.S. Rape § 22, at 334 (2002). One treatise discusses fraud in these cases:

In some of these cases the doctor has not hesitated to make it clear that he intended to have sexual intercourse with the patient, his fraud being in the deceitful suggestion that this was necessary to cure some malady, which was fraud in the inducement, since the patient knew exactly what was to be done and was deceived only in regard to a collateral matter — the reason why it was to be done. And here as usual the direct and immediate consequence of consent obtained by fraud in the inducement is the same as consent given in the absence of fraud, and since the patient consented to the intercourse it was not rape so long as she was over the statutory age.

Perkins & Boyce, ch. 9, at 1079-80.

Bolsinger argues that each of these young men was told what the touching would consist of and that they were then touched in the exact manner they expected. Thus, he argues, any fraud was fraud in the inducement, not fraud in fact.

In Bolsinger's case, if the boys had consented to acts such as massaging their legs and instead Bolsinger had touched their genital area, this would clearly be fraud in fact; they would have consented to one act but subjected to a different one. That is not the case, however. We conclude that the consents given here were based on fraud in the inducement, not on fraud in fact, as the victims were touched in exactly the manner represented to them. The consents, therefore, were not vitiated.

In reaching this conclusion, we do so based on the authorities discussed above and not on Bolsinger's alternative argument [565] that Iowa's sex abuse law in effect provides no way to vitiate consent based on fraud. This argument, based on the doctrine of inclusio unius est exclusio alterius, is that the Code sets out a limited list of circumstances under which consent may be vitiated. These include the victim's age (Iowa Code section 709.4(2)(b) and (c)), a mental defect or incapacity (Iowa Code section 709.4(2)(a) and (4)), a physical incapacity (Iowa Code section 709.4(4)), and the influence of controlled substances (Iowa Code section 709.4(3)). Contrary to Bolsinger's argument, we believe that these are not the only circumstances in which consent can be vitiated and that fraud in fact should be held to vitiate consent in sexual abuse cases just as it does in any other criminal case. We rejected a similar inclusio unius est exclusio alterius argument in State v. Ramsey, 444 N.W.2d 493 (Iowa 1989), which involved a statute prohibiting the removal of a person without their consent. We held that deception by the defendant vitiated the victim's consent.

[The defendant] contends that because the word "deception" is not used in section 710.1, it cannot form the basis upon which his conviction rests. Ramsey is confusing means with ends, however. Ramsey's intent, as expressed by his girlfriend and logically inferred from subsequent events, was to remove an innocent person to a remote location, shoot him, and steal his car. Whether the removal was accomplished by force or artful deception, the end result remains the same.

Id. at 494. Ramsey involved fraud in fact; the victim agreed to give the defendant a ride, not to be shot in the back of the head. Id. at 493-94.

Our conclusion that the boys' consent in this case was based on fraud in the inducement and not fraud in fact calls into question the court of appeals case of Vander Esch. In fact, in the four-to-four decision by the court of appeals in Bolsinger's appeal, four members of that court urge us to overrule Vander Esch. We now hold that Vander Esch is no longer controlling because the facts on which that case was based clearly show fraud in the inducement, not fraud in fact.

IV. Remaining Issues.

Bolsinger raises several additional issues, which, if resolved in his favor, would result in a reversal of all convictions — sexual exploitation by a counselor and sexual misconduct with a juvenile offender, as well as third-degree sexual abuse. He claims (1) the fruits of the search of his home should have been suppressed; and (2) in any event, his actions were not "sex acts" under the Code.

A. The search warrant. Bolsinger contends the search of his home was illegal because the search warrant was invalid, and in any event, the officers executing it did so improperly. We review rulings on motions to suppress based on alleged Fourth Amendment violations de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

Bolsinger contends the search warrant lacked probable cause, was based on false statements in the application, and was overbroad. We have considered the record and the defendant's arguments on the legality of the search warrant and on the execution of it and conclude the warrant was based on probable cause, was not based on false statements, and was not overbroad. Further, we conclude the officers properly executed the warrant. We reject Bolsinger's motion-to-suppress issue.

B. Were these "sex acts" under the applicable statutes? The defendant contends that the district court erred in denying his motion for directed verdict as to all charges because "sex acts," under [566] the Code, were not proved. We have already determined that Bolsinger's conviction of third-degree sexual abuse cannot stand. The remaining charges, sexual abuse by a counselor or therapist and sexual misconduct with offenders, both require proof of sex acts. Bolsinger argues that none of the young men testified there was anything sexual going on and that the evidence was insufficient to establish the existence of sex acts. The jury was instructed, based on Iowa Code section 702.17, that a "sex act" is

[a]ny sexual contact between the fingers or hand of one person and the genitals or anus of another person. `Genitals' include the scrotum and penis. You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.

We believe there was substantial evidence to support the jury's finding that sex acts had been committed. Direct evidence is not required.

The sexual nature of the contact can be determined from the type of contact and the circumstances surrounding it. . . .

. . . Other relevant circumstances include but are not limited to the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact.

State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). The evidence shows that Bolsinger was acting outside the scope of his duties, his actions took place in private, and he did not document these procedures, contrary to the policy at Wittenmyer. Bolsinger had no medical training other than information he had received in school on testicular cancer and self-examination and was in a position of power over the victims. Considered in light of this evidence a rational finder of fact could conclude that Bolsinger committed sex acts under the guise of performing medical examinations. The trial court did not err in overruling his motions for judgment of acquittal on the charges of sexual abuse by a counselor or sexual misconduct with offenders.

We reverse the convictions for third-degree sexual abuse and affirm the remaining convictions. We remand for resentencing without regard to the third-degree sexual abuse convictions under Iowa Code section 709.4(1).

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

GOVERNMENT OF the VIRGIN ISLANDS v. Louis SCUITO, Appellant.

No. 79-1905.

United States Court of Appeals, Third Circuit.

Argued April 23, 1980.

Decided June 25, 1980.

Larry J. Ritchie, Washington, D.C. (argued), John E. Stout, Grunert, Stout, Hymes, Mayer & Smock, Charlotte Amalie, St. Thomas, V.I., for appellant.

David B. Smith (argued), Dept, of Justice, Washington, D.C., Ishmael A. Meyers, U.S. Atty., Terry M. Halpern, Asst. U.S. Atty., Charlotte Amalie, St. Thomas, V.I., for appellee.

Before ADAMS, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal from a conviction for forcible rape,1 the defendant Louis Scuito asserts two errors: (1) The trial judge erred in not barring a new trial on double jeopardy grounds after a mistrial was declared on Scuito’s motion because of certain prejudicial questions asked by the prosecutor. (2) The trial judge abused or failed to exercise his discretion in denying the defendant’s motion for a psychiatric examination of the complainant. Finding neither ground persuasive, we will affirm the conviction.

I.

The complainant worked as a waitress at the Drunken Shrimp restaurant, where the defendant was a frequent patron. When the complainant worked late on the night of July 9, 1978, the owner of the restaurant arranged for Scuito to give the complainant a ride to her apartment. It is undisputed that Scuito took a detour down a beach road, where the two had sexual intercourse, after which he took the complainant home. The crucial issue at trial was solely whether she consented.

According to the complainant, Scuito turned down the beach road to relieve himself, and then continued to a turnaround, stopped the jeep, and began kissing her. She expressed lack of interest, but the defendant then told her he had a knife and would throw her into the ocean if she did not cooperate. She testified that she did not actually see the knife in the dark, but felt “something metal” cut into her neck, after which she ceased resistance and attempted to calm him and avoid harm by cooperating. At trial there was medical and other testimony of a cut on the side of the complainant’s neck where she said the knife was held. After taking off her clothes, the defendant raped and sodomized her. During the course of the assault she prayed and recited her “mantra.”2 Upon being dropped off at home, she kissed the defendant on the forehead because, she testified, “I was praying for him” and “it was just kind of like an end to the prayer.”

Scuito testified that he casually knew the complainant and her sister and had previously driven them home from the restaurant. He said that on the night of July 9, when he gave the complainant a ride to her apartment, she seemed “a little spaced, not all there.” While riding home, she offered him marijuana and he drove off the main road to smoke it with her. He later “came on to her,” he said. Although initially she protested, he eventually changed her mind without using or threatening any physical force.

Prior to the first trial there had been a discussion between counsel and the court regarding the admissibility of evidence that Scuito previously had raped another young woman after threatening to shoot her with a flare gun. Defense counsel contended that such evidence would be relevant only if the defendant put his character in issue, which he did not at that time intend to do. The prosecutor agreed not to mention the other alleged rape in the opening statement to the jury, but reserved the right to seek admission of the evidence under Fed.R. Evid. 404(b),3 if the testimony that was adduced created the opportunity. The trial judge asserted that the evidence could be admissible only if he became satisfied that it was relevant and met the Fed.R.Evid. 403 standard of probative value outweighing prejudice to the defendant. “For that purpose,” he said, “I will hear testimony to be offered outside of the presence of the jury and make that determination.”

The defense called two witnesses at the first trial: the defendant himself and a next-door neighbor who was defendant’s former roommate. The latter answered “no” to defense counsel’s question whether he knew anything about the defendant that would indicate any abnormal sexual behavior on his part. Prior to cross-examining the former roommate, the prosecutor asked for “a ruling with respect to my specific question,” to which the court replied, “Well, ask the question, I don’t give any rulings in advance.” The prosecutor thereafter asked the witness whether he would consider rape to be abnormal sexual behavior. The next question, “Would your consider a man that took a flare gun — ,” was interrupted by defense counsel’s objection that the prosecutor “was getting into the same line we were discussing previously.”

Asked if the question was a hypothetical one, “not related to the facts,” the prosecutor replied: “It is not related to the facts of this case.” The objection was overruled and the prosecutor asked: “Would you consider a man taking a flare gun, holding it at a woman and telling her he will disfigure her if she didn’t allow him to have intercourse with her, would you consider that to be abnormal, aberrant sexual behavior?” After an affirmative reply, the prosecutor asked, “If you had heard — ,” only to be cut off by the court disallowing the question and indicating that it “goes to something that has not been put in issue.” Shortly thereafter, when the defense rested and the jury was excused, defense counsel moved for a mistrial on the basis of the question about the flare gun.

The trial judge granted a mistrial, and said he based his decision on three incidents in the trial. First, when the owner of the Drunken Shrimp testified, she made two spontaneous outbursts indicating her belief that Scuito was guilty.4 Second, the complainant had put the defendant’s character in issue by suggesting he had had homosexual relationships. Third was the reference to the flare gun.

In motions preceding the second trial, the defendant asked that the indictment be dismissed on double jeopardy grounds, or, if it were not, for an order requiring a psychiatric examination of the complainant “and further providing that the results of [the] examination be made available to the defense for possible use at trial.” Both motions were denied and, after a trial with essentially the same evidence as in the first, but without the prejudicial incidents noted by the judge, Scuito was convicted.

II.

The double jeopardy clause of the Fifth Amendment protects a defendant in a criminal proceeding against repeated prosecutions for the same offense as well as against multiple punishments. Underlying the safeguard is the belief that the state should not be allowed to make repeated attempts to convict an individual. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The reach of the clause’s bar to successive prosecutions may extend to terminations of trials by mistrials as well as by acquittals. Because the accused has a “valued right . to have his trial completed by the particular tribunal summoned to sit in judgment on him,” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033,1034, 10 L.Ed.2d 100 (1963), a mistrial on the prosecution’s motion or by the court on its own initiative should be declared only when there is “manifest necessity” for it. United States v. Perez, 9 Wheat. 579, 580, 22 U.S. 256, 256, 6 L.Ed. 165 (1824).

Different considerations have been held to apply to mistrials declared on a defendant’s motion as opposed to those declared without the defendant’s assent. Whereas the “manifest necessity” standard applies to the latter, with the former a retrial is barred only when the circumstances causing the mistrial are “ ‘attributable to prosecutorial or judicial overreaching.’ ” United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (quoting United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971)). Defendants are to be protected against “ ‘bad faith’ conduct by judge or prosecutor,” as when government actions are “intended to provoke mistrial requests.” Id., 424 U.S. at 611, 96 S.Ct. at 1081. Elsewhere the Supreme Court has stated: “Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was ‘motivated by bad faith or undertaken to harass or prejudice,’ . would there be any barrier to retrial.” Lee v. United States, 432 U.S. 23, 32-33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977) (quoting Downum, 424 U.S. at 611, 96 S.Ct. at 1081).

Scuito argues that the trial judge erred in denying his motion to dismiss the indictment by applying the wrong legal standard to his double jeopardy claim. He contends that the court required a showing of “substantial prosecutorial misconduct,” whereas “gross negligence” ought to be sufficient.5 On the other hand, the Government urges us to restrict the double jeopardy bar to mistrials declared because of prosecutorial recklessness.6

The practical difference between “gross negligence” and “recklessness” is not always clear,7 although both connote a more extreme departure from a reasonable standard of conduct than does “mere negligence,” which is clearly insufficient to preclude reprosecution.8

Assuming that either gross negligence or recklessness might constitute prosecutorial overreaching that would trigger the double jeopardy bar to retrial,9 and assuming that a significantly lower level of egregiousness could be termed gross negligence but not recklessness,10 we conclude that a retrial was nevertheless permissible in this case. The first two reasons given by the judge in declaring a mistrial concerned events not attributable to prosecutorial misconduct. The improper utterances of the restaurant owner were spontaneous and in no way elicited by the prosecutor. It is somewhat unclear whether the prosecution or defense first put the defendant’s eharacter in issue,11 but since defense counsel did not object we find it somewhat incongruous for him now to claim that any error in questioning as to character constituted gross negligence.

The only significant question, therefore, is how to describe the prosecutor’s introduction of questions about the flare gun incident. The most accurate characterization, we believe, and the one seemingly put forth by the trial judge, is that the improper questioning was the result of a misunderstanding.12

It had been decided at pretrial discussions that the alleged other rape would not be mentioned in the prosecutor’s opening statement and that the prosecutor would request a hearing out of the presence of the jury if subsequent events led the government to believe the evidence was admissible. The prosecutor did not in fact mention the incident in her opening statement and believed she was complying with the pretrial decision when she asked for a sidebar conference. Thinking more routine matters were at stake, the judge instructed her to continue questioning and said that he would wait for an objection before making a ruling.

The trial judge ascribed no bad motives to the prosecutor’s conduct and indeed, concluded that, at most, “misjudgment” rather than “misconduct” was involved.13 Thus, whether the standard be gross negligence, recklessness, or misconduct of a more intentional nature, any prosecutorial error in conducting the first trial did not trigger the Fifth Amendment’s bar to double jeopardy.

III.

As an alternative to his double jeopardy claim, Scuito moved before the second trial for a psychiatric examination of the complainant. In a supporting affidavit, his attorney made the following specific representations:

I have been informed by any number of persons in the community that the said complainant appears to be often, if not almost constantly, in a “spaced out” or trancelike state; I have personally observed this; I have been further informed by persons in the community that the said complainant is addicted to, and does continually use, controlled substances, and that she is frequently in altered states of consciousness therefrom; and I have further observed and been told of the said complainant’s habit of dressing and being seen publically in see-through top garments which seem indicative of socially aberrant behavior;

Further, my observation of the said complainant at the first trial herein showed, in my opinion, a rather strange and mysterious countenance on her part, and her testimony appeared strange, not only from the standpoint of her account of not reporting the alleged crimes until the next day, but particularly from her admitted interest and devotion to a certain book, written by a guru devotee of Timothy Leary which contains passages of religious-like worship of LSD and other mind-altering drugs; [and]

That the foregoing observations are highly indicative of a personality which fantasizes to extremes and which indulges in and seeks altered states of consciousness[.]

The trial judge denied the motion because to require a psychiatric examination “would violate the spirit of [Fed.R.Evid.] 412.” Scuito contends that any reliance on Rule 412 is legal error and that, by relying on the rule, the judge either abused his discretion or failed properly to exercise his discretion. It is apparent, though the defendant does not so state, that different consequences would flow from these alternative conclusions: if the judge abused his discretion to the prejudice of defendant, a new trial should be ordered; if he failed to exercise his discretion out of a mistaken belief that Rule 412 controlled the issue, we should remand so that he may consider the matter anew. We conclude that the court exercised its discretion and that it was not abused.

Defendant does not press the extreme position, espoused by Wigmore, that a psychiatric examination of a complainant should be required in all sexual offense prosecutions.14 Rather, defendant agrees with the Government that the decision to order an examination is “entrusted to the sound discretion of the trial judge in light of the particular facts.” United States v. Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1972) (Bazelon, C. J.); see Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (Cal.1966). But cf. United States v. Dildy, 39 F.R.D. 340, 342 (D.D.C. 1966) (courts have no power absent a statute to compel complainant to submit to psychiatric examination).

This discretion is not, of course, unbounded, for there are countervailing considerations weighing heavily against ordering a psychiatric examination of a complainant. As set out by the Court of Appeals for the District of Columbia Circuit, they are that

a psychiatric examination may seriously impinge on a witness’ right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all.

United States v. Benn, 476 F.2d at 1131. Benn, it should be noted, held that the trial judge did not abuse his discretion in declining to order the examination of an admittedly mentally defective complainant.15

Fed.R.Evid. 412 is specifically addressed to evidence of a rape victim’s prior sexual conduct,16 whereas defendant’s motion was not an attempt to introduce such evidence, but an effort to obtain an expert opinion regarding the complainant’s general ability to perceive reality and separate fact from fantasy. Because the rule does not directly apply to his motion, the defendant argues that the court either abused or did not exercise its discretion in denying the motion. The judge’s ruling, however, was not based on the letter but on the spirit of Rule 412. The principal purpose of that rule is, as its legislative history demonstrates,17 quite similar to the countervailing considerations quoted above: “to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives.”18 The rationale, according to one commentator, “is to prevent the victim, rather than the defendant, from being put on trial.”19

We hold that in relying on the spirit of Rule 412 the trial judge exercised discretion, and that nothing alleged in defense counsel’s affidavit indicates that he abused his discretion. To the extent admissible, and we express no opinion on that matter, evidence that the complainant was thought by members of the community to indulge in drugs leading to “altered states of consciousness” or to dress in a manner “indicative of socially aberrant behavior” could be introduced by direct rather than expert testimony. If, however, such matters are not relevant or otherwise admissible, there is no justification for letting them into the trial by allowing an expert to give his opinion regarding them. As to defense counsel’s observations of the complainant at the first trial, we note that the trial judge as well had an opportunity to observe whether her manner or testimony was sufficiently indicative of mental disturbance to justify a psychiatric examination.

III.

The judgment of the trial court will be affirmed.

1

. The defendant was convicted under V.I. Code Ann., tit. 14, § 1701(3).

2

. A mantra has been defined as [“a] sound aid used while meditating. Each meditator has his own personal mantra which is never to be revealed to any other person.” Malnak v. Yogi, 592 F.2d 197, 198 (3d Cir. 1979). When asked on cross-examination what a “mantra” is, the complainant stated:

It’s something that you do to put yourself (sic) father than worrying about all the other things that are going on outside of your own self you try to center your consciousness and like bring it to a good state of mind.

3

. That rule states:

1. Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

4

. At one point the witness, obviously distraught, had blurted out, “Louie, why did you do it.” Later she said, “I have known Louie for one year, I can’t believe [he] would do that.” Both times, the court admonished her not to volunteer such comments and instructed the jury to disregard them.

5

. The gross negligence standard for precluding retrial has been adopted by two courts of appeals. See United States v. Crouch, 566 F.2d 1311, 1318 n. 9 (5th Cir. 1978) (“We have held that prosecutorial overreaching includes gross negligence.”); United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976) (same); United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); United States v. Martin, 561 F.2d 135, 139-40 (8th Cir. 1977).

6

. The standard the Government would have us adopt is stated thus: “[Wjhere a prosecutor engages in intentional misconduct which he or she knows has the potential for producing a mistrial and the court determines that the prosecutor was either indifferent to such an outcome or had reason to seek it, the Double Jeopardy Clause bars a retrial.” Brief for Appellee at 20; see id. at 22 (retrial should not be barred unless there is good reason to believe that the court or prosecutor was “indifferent” to possibility of mistrial).

7

. Dean Prosser describes gross negligence as follows:

As it originally appeared, this was very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring willful misconduct, or recklessness, or such utter lack of all care as will be evidence of either — sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that “gross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences; and that it is, in other words, merely an extreme departure from the ordinary standard of care.

W. Prosser, Handbook of the Law of Torts § 34, at 183-84 (4th ed. 1971) (footnotes omitted). The Model Penal Code distinguishes between acting recklessly and acting negligently according to whether a person “consciously disregarded” or simply “should be aware of” a substantial and unjustifiable risk. Model Penal Code § 2.02, reprinted in 10 Uniform Laws Ann. at 465. No definition of gross negligence appears.

8

. United States v. DiSilvio, 520 F.2d 247, 250 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); see United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1970) (dictum). In DiSilvio, we suggested that prosecutorial misconduct must be “intentional,” and not simply negligent, regardless of the level of the negligence, to bar retrial. See 520 F.2d at 250.

9

. It is unclear why the Government conceded that recklessness was sufficient to bar reprosecution, rather than arguing from the Supreme Court cases that intentional, bad faith misconduct was required. In any event, we do not find it necessary in this case to choose among the proffered standards.

10

. Intention as to result is irrelevant to both concepts. See note 6 supra. Rather, the distinguishing characteristic, to the extent one may be found, seems to be whether or not the indifference to a prescribed standard of conduct was conscious or intentional. See id.

11

. In a colloquy on the mistrial motion between defense counsel and the court, the trial judge seemed to indicate that defense counsel, Mr. Stout, first put the defendant’s character at issue:

MR. STOUT: I was not the one that put this aspect of character in issue anyway. It was the questioning as I recall of Mrs. Halpem of Mr. Scuito about any homosexual relationship, about the possibility of it.

THE COURT: You started [it] in a sense [when] you asked him did he live with anyone and he said yes and you asked him male or female.

MR. STOUT: But that wasn’t to show anything about homosexuality, that was to show that he was accustomed to living with a lady.

THE COURT: Exactly, which is the negative of saying he is not [sic] a homosexual.

MR. STOUT: Not for that purpose at all. It was strictly for the purpose [of showing] that he is not like some little old demented men walking around and doesn’t have any source of sexual intercourse and I think it is clear that this was the reason why that evidence was put in.

On the other hand, in giving his oral decision regarding the mistrial motion, the judge stated that the complainant was “the one that put this defendant’s character in issue, not the defendant. She is the one as I recall the testimony who first suggested that there was some improper relationship between the defendant and [another man] whom she described as ‘gay.’ ”

12

. The characterization as a misunderstanding is apparent in the following explanation from the bench:

Then came the question about the flare gun. It is true that counsel had asked to come to sidebar about a question and it is true that I declined to have counsel come to sidebar. I declined that several times when Mr. Stout wanted to come to sidebar also and I do that because in nine cases out of ten the sidebar conference is a waste of time.

I see my function as sitting as a Judge and not as a professor of law and nine times out of ten it is to ask the Court a question that counsel should have researched and informed himself or herself of the answer before coming to court. That flare gun question did not need a sidebar conference as I see it because I had previously ruled that before we went into any aspect, and I ruled this before the trial began, before we went into any aspect of this extrinsic wrongful act of this defendant, I would hold a hearing outside of the presence of the jury and I would hear the testimony and I will decide its relevancy and I will decide the possible prejudice before the jury heard anything about it. And if that was all counsel desired there was no need to ask for a sidebar conference. The simple thing was to say I am ready for that hearing and it would have been accorded. But nobody asked for a hearing.

13

. In the opinion denying defendant’s motion to dismiss the indictment before the second trial, the court stated:

The distinction must be made between misjudgment and misconduct. If anything the former may have been present in this case. Evidence as to the latter, if present, escaped the Court’s notice. Counsel on both sides it appears, committed trial error.

14

. See 3A Wigmore on Evidence § 924a, at 737 (Chadbourne rev. 1970) (“No judge should let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.”) (italics deleted). The Wigmore position does not seem to be accepted in any jurisdiction. See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 547 n. 11 (1980) (describing Wigmore’s position as “untenable as a general rule”).

15

. The trial judge in Benn declined to order a psychiatric examination, observing that corroborating evidence was present. See 476 F.2d at 1131. The Supreme Court of California has stated that a necessity authorizing the court to order the complainant to undergo such an examination “would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness’ mental or emotional condition on her veracity.” Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (1966). In the case sub judice, a key element of the complainant’s testimony was corroborated. She testified that the defendant held a knife to her throat, and the medical examiner reported a cut on the side of her throat where the weapon was held.

One scholar’s examination of the problem led to the following recommendation:

In the face of compelling circumstances (such as lack of corroboration and reason to doubt the witness’ story), a judge could properly decide to take [the] drastic tack [of ordering a psychiatric examination]. If such an interview — or some other reliable source — yields conclusions supportive of the defense’s theory [that the defendant is truly disturbed, distorts reality, or is a pathological liar], the accused should clearly be permitted to prove these highly relevant facts.

Berger, Man’s Trial. Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 68-69 (1977) (footnotes omitted).

16

. The principle portion of the Rule qualified in subsections (b)-(d), states:

Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.

17

. There was no committee report on the Privacy Protection for Rape Victims Act of 1978, which added Rule 412 to the Federal Rules of Evidence. Comments on the floor of the House by Representatives Mann, Wiggins, and Holtzman are reported at 124 Cong.Rec. H 11944-45 (Oct. 10. 1978) and reprinted in 28 U.S.C.A. Fed.R.Evid. 412 note (Supp.1979). Comments in the Senate by Senators Thurmond, Bayh and Biden are reported at 124 Cong.Rec. S 18579-81 (Oct. 12, 1978).

18

. 124 Cong.Rec. H 11945 (Oct. 10, 1978) (Rep. Mann).

19

. 2 J. Weinstein & M. Berger, Weinstein’s Evidence § 412[01], at 412-9 (1979). The rule may also be seen as part of a movement toward making rape prosecutions less special and treating the rape complainant like complainants in other crimes. See Berger, supra note 15, at 97.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY

[228] PER CURIAM.

Petitioner James Olden and his friend Charlie Ray Harris, both of whom are black, were indicted for kidnaping, rape, and forcible sodomy. The victim of the alleged crimes, Starla Matthews, a young white woman, gave the following account at trial: She and a friend, Regina Patton, had driven to Princeton, Kentucky, to exchange Christmas gifts with Bill Russell, petitioner's half brother. After meeting Russell at a local car wash and exchanging presents with him, Matthews and Patton stopped in J. R.'s, a "boot-legging joint" serving a predominantly black clientele, to use the restroom. Matthews consumed several glasses of beer. As the bar became more crowded, she became increasingly nervous because she and Patton were the only white people there. When Patton refused to leave, Matthews sat at a separate table, hoping to demonstrate to her friend that she was upset. As time passed, however, Matthews lost track of Patton and became somewhat intoxicated. When petitioner told her that Patton had departed and had been in a car accident, she left the bar with petitioner and Harris to find out what had happened. She was driven in Harris' car to another location, where, threatening her with a knife, petitioner raped and sodomized her. Harris assisted by holding her arms. Later, she was driven to a dump, where two other men joined the group. There, petitioner raped her once again. At her request, the men then dropped her off in the vicinity of Bill Russell's house.

On cross-examination, petitioner's counsel focused on a number of inconsistencies in Matthews' various accounts of the alleged crime. Matthews originally told the police that she had been raped by four men. Later, she claimed that she had been raped by only petitioner and Harris. At trial, she contended that petitioner was the sole rapist. Further, while Matthews testified at trial that petitioner had threatened her with a knife, she had not previously alleged that petitioner had been armed.

[229] Russell, who also appeared as a State's witness, testified that on the evening in question he heard a noise outside his home and, when he went out to investigate, saw Matthews get out of Harris' car. Matthews immediately told Russell that she had just been raped by petitioner and Harris.

Petitioner and Harris asserted a defense of consent. According to their testimony, Matthews propositioned petitioner as he was about to leave the bar, and the two engaged in sexual acts behind the tavern. Afterwards, on Matthews' suggestion, Matthews, petitioner, and Harris left in Harris' car in search of cocaine. When they discovered that the seller was not at home, Matthews asked Harris to drive to a local dump so that she and petitioner could have sex once again. Harris complied. Later that evening, they picked up two other men, Richard Hickey and Chris Taylor, and drove to an establishment called The Alley. Harris, Taylor, and Hickey went in, leaving petitioner and Matthews in the car. When Hickey and Harris returned, the men gave Hickey a ride to a store and then dropped Matthews off, at her request, in the vicinity of Bill Russell's home.

Taylor and Hickey testified for the defense and corroborated the defendants' account of the evening. While both acknowledged that they joined the group later than the time when the alleged rape occurred, both testified that Matthews did not appear upset. Hickey further testified that Matthews had approached him earlier in the evening at J. R.'s and told him that she was looking for a black man with whom to have sex. An independent witness also appeared for the defense and testified that he had seen Matthews, Harris, and petitioner at a store called Big O's on the evening in question, that a policeman was in the store at the time, and that Matthews, who appeared alert, made no attempt to signal for assistance.

Although Matthews and Russell were both married to and living with other people at the time of the incident, they were apparently involved in an extramarital relationship. By the [230] time of trial the two were living together, having separated from their respective spouses. Petitioner's theory of the case was that Matthews concocted the rape story to protect her relationship with Russell, who would have grown suspicious upon seeing her disembark from Harris' car. In order to demonstrate Matthews' motive to lie, it was crucial, petitioner contended, that he be allowed to introduce evidence of Matthews' and Russell's current cohabitation. Over petitioner's vehement objections, the trial court nonetheless granted the prosecutor's motion in limine to keep all evidence of Matthews' and Russell's living arrangement from the jury. Moreover, when the defense attempted to cross-examine Matthews about her living arrangements, after she had claimed during direct examination that she was living with her mother, the trial court sustained the prosecutor's objection.

Based on the evidence admitted at trial, the jury acquitted Harris of being either a principal or an accomplice to any of the charged offenses. Petitioner was likewise acquitted of kidnaping and rape. However, in a somewhat puzzling turn of events, the jury convicted petitioner alone of forcible sodomy. He was sentenced to 10 years' imprisonment.

Petitioner appealed, asserting, inter alia, that the trial court's refusal to allow him to impeach Matthews' testimony by introducing evidence supporting a motive to lie deprived him of his Sixth Amendment right to confront witnesses against him. The Kentucky Court of Appeals upheld the conviction. No. 86-CR-006 (May 11, 1988). The court specifically held that evidence that Matthews and Russell were living together at the time of trial was not barred by the State's rape shield law. Ky. Rev. Stat. Ann. § 510.145 (Michie 1985). Moreover, it acknowledged that the evidence in question was relevant to petitioner's theory of the case. But it held, nonetheless, that the evidence was properly excluded as "its probative value [was] outweighed by its possibility for prejudice." App. to Pet. for Cert. A6. By way [231] of explanation, the court stated: "[T]here were the undisputed facts of race; Matthews was white and Russell was black. For the trial court to have admitted into evidence testimony that Matthews and Russell were living together at the time of the trial may have created extreme prejudice against Matthews." Judge Clayton, who dissented but did not address the evidentiary issue, would have reversed petitioner's conviction both because he believed the jury's verdicts were "manifestly inconsistent," and because he found Matthews' testimony too incredible to provide evidence sufficient to uphold the verdict. Id., at A7.

The Kentucky Court of Appeals failed to accord proper weight to petitioner's Sixth Amendment right "to be confronted with the witnesses against him." That right, incorporated in the Fourteenth Amendment and therefore available in state proceedings, Pointer v. Texas, 380 U. S. 400 (1965), includes the right to conduct reasonable cross-examination. Davis v. Alaska, 415 U. S. 308, 315-316 (1974).

In Davis v. Alaska, we observed that, subject to "the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation . . . , the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness." Id., at 316. We emphasized that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id., at 316-317, citing Greene v. McElroy, 360 U. S. 474, 496 (1959). Recently, in Delaware v. Van Arsdall, 475 U. S. 673 (1986), we reaffirmed Davis, and held that "a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.' " 475 U. S., at 680, quoting Davis, supra, at 318.

[232] In the instant case, petitioner has consistently asserted that he and Matthews engaged in consensual sexual acts and that Matthews — out of fear of jeopardizing her relationship with Russell — lied when she told Russell she had been raped and has continued to lie since. It is plain to us that "[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination." Delaware v. Van Arsdall, supra, at 680.

The Kentucky Court of Appeals did not dispute, and indeed acknowledged, the relevance of the impeachment evidence. Nonetheless, without acknowledging the significance of, or even adverting to, petitioner's constitutional right to confrontation, the court held that petitioner's right to effective cross-examination was outweighed by the danger that revealing Matthews' interracial relationship would prejudice the jury against her. While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant," Delaware v. Van Arsdall, supra, at 679, the limitation here was beyond reason. Speculation as to the effect of jurors' racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of Matthews' testimony.

In Delaware v. Van Arsdall, supra, we held that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California, 386 U. S. 18 (1967)] harmless-error analysis." Id., at 684. Thus we stated:

"The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. [233] Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Ibid.

Here, Matthews' testimony was central, indeed crucial, to the prosecution's case. Her story, which was directly contradicted by that of petitioner and Harris, was corroborated only by the largely derivative testimony of Russell, whose impartiality would also have been somewhat impugned by revelation of his relationship with Matthews. Finally, as demonstrated graphically by the jury's verdicts, which cannot be squared with the State's theory of the alleged crime, and by Judge Clayton's dissenting opinion below, the State's case against petitioner was far from overwhelming. In sum, considering the relevant Van Arsdall factors within the context of this case, we find it impossible to conclude "beyond a reasonable doubt" that the restriction on petitioner's right to confrontation was harmless.

The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Kentucky Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE MARSHALL, dissenting.

I continue to believe that summary dispositions deprive litigants of a fair opportunity to be heard on the merits and create a significant risk that the Court is rendering an erroneous or ill-advised decision that may confuse the lower courts. See Pennsylvania v. Bruder, ante, p. 11 (MARSHALL, [234] J., dissenting); Rhodes v. Stewart, ante, p. 4 (MARSHALL, J., dissenting); Buchanan v. Stanships, Inc., 485 U. S. 265, 269 (1988) (MARSHALL, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7 (1987) (MARSHALL, J., dissenting). I therefore dissent from the Court's decision today to reverse summarily the decision below.

[183] Mark Dwyer of counsel (Grace Vee and David M. Cohn on the brief; Robert M. Morgenthau, District Attorney of New York County, attorney), for respondent.

Diarmuid White of counsel (Brendan White on the brief, attorney), for appellant.

[208] RUBIN and ANDRIAS, JJ., concur with SAXE, J.; MAZZARELLI, J. P., concurs in part and dissents in part in a separate opinion.

OPINION OF THE COURT

SAXE, J.

On this appeal of his conviction for kidnapping, sexual abuse and assault, defendant Oliver Jovanovic asks us to examine certain issues regarding the application of the Rape Shield Law (CPL 60.42). We conclude that the trial court's evidentiary rulings incorrectly applied the Rape Shield Law and, as a result, improperly hampered defendant's ability to present a defense, requiring reversal of his conviction and remand for a new trial.

The criminal charges arose from a date between Jovanovic and the complainant which took place after weeks of on-line conversations and e-mail correspondence. This appeal focuses on a number of statements made by the complainant in e-mails sent to Jovanovic. In these statements, she indicated an interest in participating in sadomasochism. Defendant's purpose in seeking to offer these statements in evidence was not to undermine complainant's character by demonstrating that she was unchaste. Rather, it was to highlight both the complainant's state of mind on the issue of consent, and his own state of mind regarding his own reasonable beliefs as to the complainant's intentions.

Nevertheless, the trial court concluded that these statements were inadmissible under the Rape Shield Law. Initially, we hold that a careful reading of the statute discloses it to be inapplicable to much of the evidence precluded at trial. Moreover, the preclusion of this evidence improperly interfered with defendant's right to confront witnesses. "`[C]riminal defendants [184] have * * * the right to put before a jury evidence that might influence the determination of guilt'" (Taylor v Illinois, 484 US 400, 408 [citation omitted]), and the trial court's discretion to exclude evidence must be "circumscribed by the defendant's constitutional rights to present a defense and confront his accusers" (People v Hudy, 73 NY2d 40, 57). Accordingly, we hold that a new trial is required.

The Evidence at Trial

The People's case against Jovanovic was primarily founded upon the testimony of the complainant. She told a detailed story of becoming acquainted with Jovanovic through communications over the Internet, both by e-mail and by so-called "instant messages,"^[1] as well as in a number of lengthy telephone conversations.

Their first contact took place during the summer of 1996. The complainant, a Barnard undergraduate who was home for the summer in Salamanca, a small town in upstate New York, went on-line and logged onto a "chat room" called "Manhattan," hoping to find other Columbia students there. In the course of a general discussion, she received an "instant message" from Jovanovic, and embarked upon a long, "instant message" private conversation with him. Their first conversation quickly took on an intimate tone; for instance, in response to Jovanovic's information that he studied molecular genetics and computational biology at Columbia and ran a small multimedia design firm with his brother, the complainant said "I may love you, hold a sec while I check the profile." When they shortly discovered that they both spent a lot of time in a particular building at Columbia, the complainant referred to "destiny" and asked "want to have coffee?"

In this first conversation, Jovanovic indicated his interest in the grotesque, the bizarre, and the occult. He mentioned Joel-Peter Witkin, explaining that Witkin creates photographs using corpses; he mentioned Eris, the Greek goddess of discord, and a group called the "Discordians" who, he said, try to "open people's eyes." The complainant brought up her interest in snuff films (i.e., films in which a person is killed), and her thoughts of making such a film herself.

Then, on October 9, 1996, the complainant sent Jovanovic an e-mail reminding him of their previous conversation, and raised [185] again the subjects of snuff films and pagan rituals. He responded by e-mail (from Seattle) the next day, and she e-mailed back immediately. His next e-mail was on October 16, 1996, by which time he had returned to New York. She responded right away, continuing the tone of her earlier correspondence with him ("bring me anything back from Seattle?"). He did not write again until October 20, 1996. When she responded that evening, she (among other remarks) asked how tall he was.

He did not reply until November 10, 1996, when he asked "As for my height, why? Are you looking to be dismembered by a tall, dark stranger, or something of that sort? I'm sometimes strange and dark, but of average height, so perhaps you should look elsewhere. "^[2] When the complainant responded that same day, she wrote of the Columbia tunnels and their appropriate ambience for a snuff film. She asked if he had any ideas for murder plots. He responded the next day, November 11, 1996, with the suggestion that a film could be made of the true story of Sharon Lopatka (a woman who was killed in October 1996, allegedly by a man whom she had just met in person after developing an on-line relationship with him).

Their exchange of e-mail between November 13, 1996 and November 14, 1996 continued discussing fantasies for snuff films, and the complainant's purported interest in what she termed "a tall dark dismember-er."

In the complainant's e-mail of November 17, 1996, just after midnight, she told about having dragged a girl she knew to the emergency room after the girl was raped the previous night. The complainant's long message ended by describing herself as distraught. Jovanovic responded shortly thereafter with his phone number and an invitation to call if she wanted. She responded with "hey * * * is this a plot to begin dismemberment," and equivocated about calling him. His e-mail replied "it's up to you, just realize that it is an option."

The next night, November 18th, the complainant's e-mail "explained" to Jovanovic her connection to the girl whom she had said was raped. The complainant told how she "fingered"^[3] and then spoke to "one Luke, who was attached to one skitzophrenic [sic] stalker x-intrest [sic] d'amour." It was developed [186] in testimony that the complainant had initiated an on-line conversation with Luke on October 31, 1996, and began an inperson intimate relationship with him shortly after that, and that Luke's ex-girlfriend, Karen K., became jealous. It was this ex-girlfriend, Karen, whom the complainant brought to the hospital, following a telephone call in which Karen claimed to have been raped. Luke's trial testimony advanced his belief that when Karen telephoned the complainant and said she had been raped, she was motivated by a desire to interfere with his relationship with the complainant, whom he was supposed to meet with on the night of the phone call.

After Jovanovic sent an e-mail asking for details of the story she had told him about Karen and Luke, on the night of November 19, 1996 the complainant sent him a long e-mail in which she provided more information about the afternoon (November 1, 1996) when she had logged in and found e-mail from Luke and from Karen, whose e-mail had warned her to stay away from Luke.

The complainant's e-mail to Jovanovic on November 20, 1996 asked "So Oliver, you keep mentioning film after film, but where pray tell am I supposed to find them?" She also indicated an intense desire to know more about him, and spoke of "too many taboos surrounding the questions I want to ask." Two hours later he replied "Taboos are meant to be broken. * * * You'll simply have to ask more questions. Of course, that way lies dismemberment." Soon after that, still on November 20, 1996, she e-mailed back, "I think you may just be toying with the idea of dismemberment" and told him that she has to push herself, see how far she can take it, testing her limits. She also warned, "arms and legs are not toys" and that "It could get sick. And just may."

After more e-mails back and forth during the late night/early morning hours of November 21, 1996, at about 2:30 A.M., the complainant referred to things getting "kind of intimate," and then, at about 5:00 A.M., Jovanovic ended his message with "Should I call you, or you call me." That afternoon her e-mail message included her phone number, with the message that she would be home around 3:00 that night.

He called at about 3:00 A.M. on November 22nd, and they spoke for approximately four hours. According to the complainant's trial testimony, Jovanovic invited her to see a movie with him that night, and she gave him the address of her dormitory.

[187] The Complainant's Narrative of the Events of November 22-23, 1996

Jovanovic arrived at 8:30 P.M. on November 22, and suggested that they get something to eat. When they finished dinner at around 10:15, he said it was too late for the movie they had agreed upon, and asked if she wanted to see a video at his apartment instead. She said "I don't know"—explaining in her testimony that although she did not want to, she has trouble being assertive. Finally she agreed. He drove to three video rental outlets, but did not find what he wanted. He said he had some videos at his apartment, which was located in Washington Heights, and they proceeded to drive there, arriving at about 11:30 P.M.

Jovanovic gave her some tea, which she found to have a chemical taste, and a book of photographs by Joel-Peter Witkin, depicting corpses placed in grotesque poses. They watched a video entitled "Meet the Feebles," in which Muppet-like characters engage in sexual or violent behavior. During the movie, Jovanovic left the room and returned with some strips of fabric, which he placed next to the futon they were sitting on.

When the movie was over, she said it was getting late and she should go, but they began a conversation that ranged from the subjects of East Timor, media control of the news, and religion, to the subject of people with multiple personalities. Jovanovic told her he had another personality called the "Wise Philosopher" whom he can turn into when he encounters pain. To demonstrate, he told her to twist his wrist, which she did; she testified that he appeared to be "in" a personality that did not feel pain.

When he introduced the subject of good and evil, the complainant told him that she did not believe that evil existed. He looked stern, and in a voice she also characterized as "stern," told her to take off her sweater. He then repeated this directive in a louder voice. The complainant testified that she did not know what to do, thought it was a joke, but nevertheless removed her sweater. Then he told her to take off her pants, and she complied. He instructed her to lie down, and he tied her legs and arms to the frame of the futon, one limb to each corner; she explained that she did not protest because she did not know what to think.

Jovanovic went to the kitchen and came back with some candles, including a white candle in a glass. He sat between [188] her legs and lit the candle in the glass. At this point, the complainant testified that she protested, asking him not to burn her, telling him to untie her and demanding that he stop. However, when the glass was full of molten candle wax he dumped it on her stomach. She again protested, but he waited for the glass to fill with wax and then poured it on her stomach. Next, he pulled her panties away and dripped wax around her vaginal area, and after her bra popped open spontaneously, he poured wax on her nipples too. Then he took some ice cubes and placed them wherever he had poured the wax. She screamed and told him to stop, but his response was to ask why she was screaming, and to say that suffering was a human condition. At one point he gagged her and then blindfolded her. Next, he proceeded to bite her nipples and her collarbone.

After about an hour of this behavior, he left the apartment to move his car. When he returned, he cut the ties, picked her up and carried her to his bed. The complainant said, "don't rape me, don't dismember me, don't kill me." He replied, "is there anything else you don't want me to do?" She said, "yes, don't do anything you can get arrested for." When Jovanovic responded, "do you think I'm going to get arrested for this?" the complainant replied that he was going to have to kill her if he did not want to get arrested. He said "that's easily enough done," and pinched her nose shut and put his hand over her mouth for a minute, until she felt a bit dizzy.

Jovanovic then began to speak to the complainant about the need for women to learn self-defense, illustrating his point by noting that the only victim who was able to escape from noted murderer Jeffrey Dahmer was a person proficient in martial arts. At some point, unclear from the complainant's narrative, he hog-tied her, so she was on her stomach with her hands and feet tied together behind her back.

He next retrieved two batons from the closet, turned her on her stomach, and penetrated her rectum with either a baton or his penis, causing the complainant intense pain.

The complainant's next memory was of waking some time on Saturday, November 23, 1996, still hog-tied. Jovanovic untied her for a time and attempted to give her some instruction in self-defense. When she tried to run, he tied her up again.

Then, that evening, while Jovanovic was trying to look at her genitals, the complainant found that she was able to untie her legs, and stood up. The complainant testified that he then looked frightened. At this point, although she said he still sought to restrain her, she continued to run and to fight him [189] off, all the while putting on her pants, sweater, and boots, picking up her bra, panties and a sock, unlocking the apartment door and finally escaping.

Subsequent Events

The complainant took the subway to her dormitory at about 10:00 P.M., fell asleep, woke up, showered, and after Luke called her at 1:00 A.M., she went to Luke's apartment, where she reported to him that she had been tied up, sodomized with a stick, hit with a baton, and burned by Jovanovic. The next morning she returned to her dormitory.

On Sunday night, November 24, 1996, she logged on to the computer at her school library and retrieved an e-mail message sent by Jovanovic the night before at 10:35 P.M. In it, he said she had forgotten her gold chain when she left the apartment, and that he could mail it if she gave him her zip code, or he could drop it off. He also said, "I have a feeling the experience may not have done you as much good as I'd hoped, because you weren't acting much smarter at the end than you were at the beginning." He closed with the words, "I hope you managed to get back all right."

The complainant sent Jovanovic a long e-mail the following day, in which her remarks included assertions that she was "purged by emotions, and pain," and that she was "quite bruised mentally and physically, but never been so happy to be alive." She said "Burroughs best sums up my state * * * the taste is so overpoweringly delicious, and at the same time, quite nauseating."

They continued their on-line communications later that day.

The Redacted Statements

With the foregoing narrative by the complainant, the People were able to present to the jury a compelling story of a woman being drawn into a cyberspace intimacy that led her into the trap of a scheming man. However, its compelling quality was due in part to its one-sided and unbalanced nature. This imbalance resulted from the trial court's ruling precluding Jovanovic from effectively challenging certain aspects of the complainant's presentation. Where he should have been given free rein to explore the complainant's truthfulness, her accuracy in relating her experiences and her grip on reality, he was instead precluded from inquiring into several highly relevant statements contained in the complainant's e-mails to him.

[190] The following discussion sets forth the portions of the complainant's e-mails to defendant that were subject to the court's preclusion order.

First Redacted E-Mail

On November 17, 1996, in the complainant's e-mail to Jovanovic, she told him of "dragging" a girl to the emergency room after the girl reported that she had been raped. After further additional messages were sent back and forth between the two that same evening, on November 18, 1996, the complainant wrote to explain to Jovanovic how, over the Internet, she had first made contact with Luke, who she described as "attached to one skitzophrenic [sic] stalker x-intrest [sic] d'amour." One sentence was deleted from this e-mail. It read, "So said intrest [sic] plotted my death as well as a means of getting attention, thus the rape."

Second Redacted E-Mail

Jovanovic's e-mail of November 18, 1996 requested to hear more details, and on November 19th, the complainant sent Jovanovic a long message relating how she became involved with Luke. She told of "fingering" Luke to chat with, and how Luke's "x-intrest [sic]," Karen, was unhappy about the complainant's new friendship with Luke and sent the complainant an e-mail warning her to stay away from him. The court deleted from this e-mail the following paragraphs, quoted here word for word (with misspellings and other errors left intact).

"the boy calls, tells lots and lots of a life led like burroughs: heroin addicted, bisexual atheist. My kinda comrad. so he seduced me. come to Ufm, I did[,] come to my appartment, I did[,] then he got me.

"Oh he sighed and pulled out an agonized tale of being young in Edinborough and on a field trip for highschool ... there were `very nice boys' (according to the chaperons) who worked at the hotel, so said chaperons let luke and his teen friends hang out with the big boys for a night on the town. Unfortunately for poor luke, one took a liking to him, (this is liking with twisted glint in the eye mind you). yes yes, so young man took young boy (luke) to empty hotel room, tied him to bed, straddled his ass, knife to throat, no protection, come in all the way and make it good ... made it good. pull out laugh leave him tied and naked and lock the door behind you. Luke managed to get free, had to hand in his key to same man the next day at check out. the man smiled that sick `nordic grin' and winked.

[191] "`oh wow' I perked up all the time thinking snuff film snuff film snuff film murder plot present, I presented offer of assistance. Luke said sure, then told me more, about his old boyfriend gillian, what he taught him. and about ginger and this one dominatrix who lives on the 10th floor."

Third Redacted E-Mail

Jovanovic answered, shortly thereafter on November 19th, "[t]hen he got you? How suspenseful," although the court precluded the first four words, "[t]hen he got you?" The complainant's response, on November 20th, contained a further personal confession that the court also deleted from the evidence, in which the complainant had replied, "No duh, there's more, more interesting than sex, yes he did catch me, no sex, but he was a sadomasochist and now I'm his slave and its [sic] painful, but the fun of telling my friends `hey I'm a sadomasochist' more than outweighs the torment."

Fourth Redacted E-Mail

Jovanovic's responsive e-mail on November 20th said, "You're submissive sometimes? Should have told me earlier." The complainant's next message in reply, also on November 20th included the following critical information, which was also redacted: "and yes, I'm what those happy pain fiends at the Vault call a `pushy bottom'."^[4]

While the vast majority of the electronic correspondence between Jovanovic and the complainant was introduced into evidence, the preclusion of the foregoing statements, particularly the last three, had an enormous impact on the defense. Basically, it left the jury with a distorted view of the events. Moreover, in the absence of proof that Jovanovic had reason to believe, prior to their meeting, that they both had intended to participate in consensual, nonviolent sadomasochism that night, his ability to testify in a credible manner as to this defense was irreparably impaired. Indeed, the limitation imposed by the court served to insulate the complainant from being fully cross-examined even as to those statements which were admitted into evidence, which evinced or implied some degree of interest in sadomasochism.

These messages were ruled inadmissible on the ground that they were covered by the protection of the Rape Shield Law [192] (CPL 60.42), in that they constituted evidence of the complainant's prior sexual conduct, having the effect of demonstrating her "unchastity." In addition to the messages themselves, based upon the trial court's understanding of the Rape Shield Law, Jovanovic was precluded from questioning either the complainant or Luke as to whether the two had mutually engaged in consensual sadomasochism. Although the court ultimately permitted Jovanovic to ask Luke whether he had caused the bruise Luke noticed on the complainant on November 24, 1996, the defense was not permitted to inquire further into whether Luke's own conduct toward the complainant at any prior time had caused any bruising.

For the following reasons, we conclude that the Rape Shield Law (CPL 60.42) does not support the ruling precluding Jovanovic from inquiring into the full complement of the complainant's statements to him.

The Statute

The Rape Shield Law represents a rejection of the centuriesold legal tradition holding that, as Professor Wigmore stated, "the character of a woman as to chastity is of considerable probative value in judging the likelihood of [her] consent" (1 Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 62, at 464 [3d ed 1940]). No longer does our society generally accept the premise that a woman who is "unchaste," i.e., unmarried and sexually active, is more likely than a "chaste" woman to consent to the sexual advances of any man (see, People v Williams, 81 NY2d 303, 312; Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L Rev 90, 97-102). It is because society now views such evidence as generally irrelevant that the Legislature enacted a law prohibiting the use of such evidence: the law "bar[s] harassment of victims and confusion of issues through raising matters relating to the victims' sexual conduct that have no proper bearing upon the defendant's guilt or innocence" (Preiser, Practice Commentaries, McKinneys Cons Laws of NY, Book 11A, CPL 60.42, at 9 [emphasis added]; see also, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 15-22). Thus, it is critical to the theory behind the Rape Shield Law that evidence of the victim's character for chastity is generally irrelevant to a rape prosecution.

In accordance with this premise, CPL 60.42 provides that,

[193] "Evidence of a victim's sexual conduct shall not be admissible in a prosecution for [a sex] offense or an attempt to commit [a sex] offense unless such evidence:

"1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or

"2. proves or tends to prove that the victim has been convicted of [prostitution] within three years prior to the sex offense which is the subject of the prosecution; or

"3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or

"4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or

"5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice" (emphasis added).

The importance of this statute is in no way diminished by the discussion and conclusions that follow. We fully recognize that a woman's character or reputation for chastity is irrelevant to a charge that she was sexually assaulted. Our holding is simply that the Rape Shield Law, by its terms, is inapplicable to the evidence the trial court held to be inadmissible.

Initially, we hold that the redacted e-mail messages were not subject to the Rape Shield Law because they did not constitute evidence of the sexual conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic.

The distinction between evidence of prior sexual conduct (to which the statute expressly applies), and evidence of statements concerning prior sexual conduct, is more than merely semantic. Direct evidence of a complainant's conduct with others would generally be introduced (if admissible) as a basis to infer that she had voluntarily behaved in such a way on prior occasions with others. In contrast, the use of a statement is not so straightforward. It is frequently relevant not to prove the truth of the matter stated, but rather, for the fact that the speaker made the statement. That is, a statement may be relevant as proof of the speaker's, or the listener's, state of mind.

For instance, here, the complainant's statements to Jovanovic regarding sadomasochism were not necessarily offered [194] to prove the truth of what she said, i.e. that she actually was a sadomasochist. Rather, much of their importance lay in the fact that she chose to say these things to Jovanovic in the context of her electronic, on-line conversation with him, so as to convey to him another message, namely, her interest in exploring the subject of such activities with him.

This distinction between evidence of sexual conduct and evidence of statements concerning past or contemplated sexual conduct has been recognized by other jurisdictions with similar Rape Shield Laws. For instance, in State v Guthrie (110 NC App 91, 428 SE2d 853), a letter written by the complainant to a third party, proposing sex, was held to be evidence of conversation, not of a sexual act, and therefore was not barred by that State's Rape Shield Law (see also, Commonwealth v Killen, 545 Pa 127, 133, 680 A2d 851, 854 [Rape Shield Law does not preclude evidence of sexually provocative statements made by the complainant after the alleged attack, one to a man who rode with her in the ambulance and another to the emergency room physician]; Doe v United States, 666 F2d 43 [testimony as to the content of telephone conversations between the victim and the defendant not excluded by the rule]).

In this State, although no holding has clearly drawn an absolute line of demarcation between prior sexual conduct and statements concerning prior sexual conduct, the Rape Shield Law has been held inapplicable to (1) a complainant's statement to the defendant that she "`was out to get laid that night'" (People v Hauver, 129 AD2d 889, 890), and (2) a complainant's prior claims of rape (see, People v Harris, 132 AD2d 940, 941). Additionally, People v Kellar (174 AD2d 848, 849, lv denied 78 NY2d 1128) draws the distinction between statements and conduct in discussing the circumstances under which CPL 60.42 (3) permits a defendant to rebut prosecution evidence that the victim had not engaged in sexual conduct with others. The Kellar Court explained that in the face of testimony that the victim was a virgin at the time of the incident, CPL 60.42 (3) entitles the defendant to offer evidence rebutting that showing; whereas, if the victim testified that she merely told the defendant that she was a virgin, the defendant would not be entitled to offer rebuttal evidence on that point under CPL 60.42 (see, People v Kellar, supra).

Were the complainant's statements framed as mere fantasies or secret desires, rather than as reports of her prior activities, there would have been no question that the Rape Shield Law would be inapplicable, since such statements reflect only [195] thoughts and not actions. Yet, in this context, the two types of statements are more similar than not. That her communication took the form of reports about her purported experiences should not transform a highly relevant statement into a protected one.

We therefore conclude that for all the foregoing reasons, the e-mail statements ruled inadmissible by the trial court were not covered by the Rape Shield Law. However, even assuming, arguendo, that no distinction could properly be made between prior conduct and statements about prior conduct, we would still hold that the Rape Shield Law does not support the preclusion of the e-mails at issue, because we conclude that these statements fall within a number of the exceptions set forth within the statute.

Applicability of the Statute's Exceptions

Although the Rape Shield Law is grounded upon a recognition that evidence of a victim's character for chastity is generally irrelevant to a rape prosecution, even the drafters of Rape Shield legislation recognized that information about the victim's past sexual conduct is not always irrelevant (see generally, Berger, Man's Trial, Woman's Tribulation, op. cit., at 57-69). Indeed, the inclusion of exceptions within CPL 60.42 is due to our Legislature's recognition of the possibility that certain types of sexual history evidence will be relevant. The bill was specifically drafted "to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48). A blanket exclusion which covered clearly relevant sexual conduct evidence would unduly circumscribe a defendant's constitutional right to cross-examine witnesses and present a defense (see, People v Williams, supra, at 312). Consequently, for instance, "the bill deems proof of the victim's past sexual conduct with the accused or acts of prostitution as relevant" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48), and, accordingly, creates an exception for such evidence. By the same token, the "interests of justice" exception contained in subdivision (5) of the statute was included to ensure that relevant evidence not otherwise admissible could be introduced.

Turning to the redacted communications from the complainant to Jovanovic, even if the precluded statements were viewed as evidence of the complainant's prior sexual conduct, they fall [196] within several of the exceptions contained in the statute. First, given the highly intimate nature of some of this information, the statements, as a practical matter, should be viewed as the equivalent of "prior sexual conduct with the accused" (subd [1]). These statements, made to Jovanovic in the context of a relationship being developed on-line, as part and parcel of the ongoing conversation that led up to their in-person encounter, are really part of the complainant's verbal repartee with him, in which each participant tells the other of their interests and preferences. Viewed with the purpose of her statements in mind, even if the Rape Shield Law were to apply to statements, the redacted statements should therefore have been held to be admissible as falling within the first exception to the Rape Shield Law (CPL 60.42 [1]).

The exception for past conduct with the accused is included in the statute because a "history of intimacies" would "tend to bolster a claim of consent" (Berger, op. cit., at 58; see also, People v Westfall, 95 AD2d 581, 583). The statements here, especially in view of their intimate nature, have the same sort of potential of shedding light on the motive, intent, and state of mind of these two people in their subsequent encounter.

Secondly, those redacted e-mail statements that report the complainant's involvement in a sadomasochistic relationship with Luke were also admissible under CPL 60.42 (4), the exception for evidence tending to rebut the people's showing that the accused is the cause of "disease" of the victim. The People contended that Jovanovic's actions had caused various bruises on the complainant. Consequently, Jovanovic should have had the right to inquire into the complainant's statements indicating that at the time of the alleged incident she was in a masterslave relationship with someone else, particularly since she specifically stated that this conduct was "painful." Further, based upon this particular statement, the defense should also have been permitted to inquire of both the complainant and Luke as to whether Luke had caused bruising to the complainant in the days prior to the incident.

Although the wording of CPL 60.42 (4) concededly does not specifically include the word "injury," it is noteworthy that the memorandum of the bill's sponsor reflects an intent to include the concept of injury along with that of disease (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48). There is no support in the legislative history for a purposeful deletion of the word "injury," and it would be illogical to permit one defendant to introduce evidence rebutting a showing that he was [197] the cause of disease in the victim, but not permit another defendant to rebut a showing that he was the cause of the victim's injuries. No rational distinction can be made (see, People v Mikula, 84 Mich App 108, 269 NW2d 195). Indeed, in other jurisdictions it has been held that due process rights must encompass the right to offer evidence providing an alternative explanation for evidence presented by the State to prove that the accused caused a physical condition arising from the charged crime (see, e.g., United States v Begay, 937 F2d 515, 523; State v Cressey, 137 NH 402, 628 A2d 696).

Third, given the relevance of the redacted statements to the issues presented to the jury, even if none of the statute's other exceptions covered the complainant's statements to Jovanovic, the "interests of justice" exception of CPL 60.42 (5) would be applicable. That exception was included in order to give courts discretion to admit what was otherwise excludable under the statute, where it is determined that the evidence is relevant (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48).

Even if no other exception applied, the precluded communications from the complainant to Jovanovic were highly relevant. The defense did not seek to introduce them to demonstrate the complainant's "unchastity" and thereby impugn her character or her honesty. Instead, the fact that the complainant made these statements to Jovanovic is relevant to establish that she purposefully conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him.

Because the jury could have inferred from the redacted e-mail messages that the complainant had shown an interest in participating in sadomasochism with Jovanovic, this evidence is clearly central to the question of whether she consented to the charged kidnapping and sexual abuse.^[5] The People emphasize that it is not whether she initially consented [198] that is relevant, but whether she withdrew her consent and whether defendant continued to act despite the withdrawal of consent. However, the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that consent was withdrawn.

Furthermore, the e-mails Jovanovic received from the complainant, particularly her statements, "now I'm his slave and its [sic] painful, but the fun of telling my friends `hey I'm a sadomasochist' more than outweighs the torment," and "yes, I'm what those happy pain fiends at the Vault call a `pushy bottom,'" could illuminate Jovanovic's understanding and beliefs as to the complainant's willingness to participate in sadomasochism with him (see, Doe v United States, 666 F2d 43, supra), and, as such, are also relevant to Jovanovic's state of mind.

The redacted e-mail messages were also highly relevant to establishing the defense that the complainant concocted her accusation in order to explain to Luke either her failure to meet him that night, or her participation in sadomasochism with another man. Moreover, direct evidence that the complainant had a sadomasochistic relationship with Luke, to which evidence the Rape Shield Law would otherwise apply, should also have been admitted, under the interests of justice exception to the statute. Even in Professor Vivian Berger's groundbreaking article, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom (77 Colum L Rev 1, 98-99), in which she discussed the need for rape shield laws, Professor Berger included among her suggested exceptions to rape shield statutes a situation where the evidence arguably showed that the complainant had a motive to fabricate the charge. Furthermore, although our Legislature did not include such an exception in this State's Rape Shield Law, the United States Supreme Court has held that in a rape/sodomy prosecution, evidence of the complainant's relationship with another man may be highly relevant to establish the defense that she lied about the consensual nature of the charged sexual activities out of [199] fear of jeopardizing that other relationship (see, Olden v Kentucky, 488 US 227).

While defendant was permitted to cross-examine the complainant and Luke so as to elicit that their relationship was "intimate," he was precluded from inquiring into the sadomasochistic nature of that connection. The ruling almost completely prevented Jovanovic from presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent elements of her story. Only through full cross-examination of the complainant, including the nature of her relationship with Luke, could defendant have "`"expose[d] to the jury the facts from which [it] could appropriately draw inferences relating to the reliability of the witness"'" (Olden v Kentucky, supra, at 231, quoting Delaware v Van Arsdall, 475 US 673, 680, quoting Davis v Alaska, 415 US 308, 318; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217). That is, only if full inquiry were permitted into her assertion that she was in a sadomasochistic relationship with Luke could the jury have a basis from which to infer that the complainant had a motive to fabricate her accusation of a forcible, violent assault, in order to avoid any negative response from Luke resulting from her voluntary participation in sadomasochism with another man.

In addition, redaction of the long narrative in the second e-mail, in which the complainant told Luke's story of a sadistic sexual encounter, was not justifiable under the Rape Shield Law, as it did not report past conduct on the part of the complainant. In any case, it was highly relevant to the attempted defense that the claim of attack was concocted, particularly in view of the similarity between that narrative and Jovanovic's complained-of conduct on the night in question.

We conclude that the trial court's rulings erroneously withheld from the jury a substantial amount of highly relevant, admissible evidence. Furthermore, these errors were of constitutional dimension.

The Sixth Amendment Right to Confront Witnesses

Cross-examination "is critical for ensuring the integrity of the fact-finding process" and is "`the principal means by which the believability of a witness and the truth of his testimony are tested'" (Kentucky v Stincer, 482 US 730, 736; Davis v Alaska, 415 US 308, 316, supra). The trial court's redaction of the complainant's statements to Jovanovic, and its consequent [200] limitation on the defense's cross-examination of the complainant regarding her interest and participation in sadomasochism and her relationship with Luke, resulted in a violation of defendant's Sixth Amendment right to confront the People's primary witness (see, Olden v Kentucky, 488 US 227, supra; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217, supra).

Admittedly, the constitutional guarantee of the right to confront the prosecution's witnesses is not absolute, and may be circumscribed by statutory evidentiary restrictions (such as the Rape Shield Law) which serve "`the legitimate demands of the adversarial system'" (People v Williams, 81 NY2d, supra, at 313, quoting United States v Nobles, 422 US 225, 241; see also, Michigan v Lucas, 500 US 145, 149). However, no legitimate evidentiary restrictions were applicable here.

While even a proper application of the Rape Shield Law may interfere to an extent with the defendant's right to confront witnesses, it must be remembered that, generally, the evidence precluded by such laws, of other, unrelated sexual conduct by the complainant, is of little or no probative value. "To the extent that shield statutes limit the accused from unfairly attacking the morality of a rape victim, they are unobjectionable" (Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544, 589 [1980]). Where the precluded evidence is highly relevant, however, the deprivation of fundamental constitutional rights cannot be justified merely by the protection of the complainant from an attack on her chastity.

The Prejudice to the Defense

The court's erroneous preclusion of the e-mail messages and other relevant, admissible evidence from the jury's consideration was particularly egregious, in view of the People's approach in presenting the case against Jovanovic. He was depicted as a monstrous sadist, scanning the Internet for unwary victims, preying on unknowing, naive innocents. In contrast, while the People, and indeed, the complainant, both acknowledged that she had flirted with Jovanovic in her messages, trying to impress him with her wit and intelligence, the complainant was basically portrayed as naive, overly trusting, overly polite and ill-informed.

The excluded e-mail stating that the complainant and Luke had a master-slave relationship that included the infliction of pain, and the e-mail in which the complainant referred to the "pain fiends at the Vault" and to herself as a "`pushy bottom,'" [201] i.e., a masochist who pushes the dominant partner to inflict more pain than intended, would have enabled Jovanovic to provide a counterpoint to the People's portrayal of the complainant and avoid the prejudice potentially created by the unbalanced portrayal. It would also have permitted Jovanovic to effectively place the complainant in a somewhat less innocent, and possibly more realistic, light. For instance, the complainant made certain remarks in her e-mails, such as "rough is good," and "dirt I find quite erotic," for which she provided the jury with completely innocent explanations. Defendant was unable to plausibly offer alternative, more suggestive readings of such e-mail remarks, as long as the jury was unaware of the extent of the complainant's interest in sadomasochism.

Jovanovic should have been given the opportunity to inquire as to what the complainant meant by her remarks regarding her participation in sadomasochism. If, in fact, they were exaggerations, or flights of fancy, their extreme nature would be relevant to the issue of the complainant's veracity and reliability. If they were exact statements of fact, Jovanovic should have been permitted to bring to the jury's attention the possibility that the person the complainant had referred to as her "master" might have been unhappy about her experiencing sadomasochism with another "master." He should also have had the opportunity to explore the complainant's intention and purpose in disclosing to him that she was involved in such a relationship.

As the case stood, Jovanovic was precluded not only from bringing out the degree to which the complainant seemed to be inviting sadomasochism, but from exploring the possibility that the complainant was a less reliable narrator of events than she appeared to be at trial. For instance, the prosecutor was able to repeatedly ask the rhetorical question, "Why would she lie?" while the defense was unable to point to an evidentiary basis for any plausible reason, although more than one existed (e.g., her "master" might have been unhappy with her had she told him her conduct with Jovanovic was consensual; or, she made a practice of creating elaborate sexual fantasies). The prosecutor was also able to remark in summation, without any possible contradiction, that if the complainant had wanted to engage in sadomasochism, she could have said so in her e-mails.

Finally, the erroneous ruling in effect gutted Jovanovic's right to testify fully in his own defense, since it prohibited him [202] from offering the jury any evidence justifying an asserted belief that the complainant had indicated a desire to participate in sadomasochism with him.

In light of the degree to which the defense was hampered, both in demonstrating that the complainant had consented to participating in sadomasochism, and in challenging the complainant's reliability and credibility as a witness, the conviction must be reversed in its entirety. Upholding the conviction on the assault charges, as the dissent suggests, would ignore the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability. We are unable to conclude that the error was harmless.

Other Evidentiary Errors:

Limitation of Inquiry into Karen's Claim of Rape

At trial, the complainant testified to her part in bringing Karen to the hospital when Karen said she had been raped. The court also permitted Luke to offer his belief that Karen's claim was motivated by her desire to interfere with his relationship with the complainant. However, following a pretrial hearing at which Karen testified, Jovanovic was prevented from inquiring before the jury what the complainant knew about what had actually occurred to Karen. In particular, he was unable to inquire into her e-mail message that "said intrest [sic] plotted my death as well as a means of getting attention, thus the rape."

The court determined in its pretrial hearing that Karen had not actually made a false rape claim, but rather, had expressed uncertainty as to whether the event would fall within the definition of rape. The court therefore concluded that the complainant could not be said to have been a party to a false rape claim, and prohibited all inquiry into this e-mail message. This ruling, too, was an improper limitation of the defense.

As a result of the court's prevention of further inquiry, the jury was left with only the complainant's initial e-mail statement about Karen having been raped, including the complainant's assertion at trial that she doesn't "understand violence." Preventing Jovanovic from cross-examining the complainant regarding the meaning of the words "[Karen] plotted my death as well as a means of getting attention, thus the rape," meant he was unable to cross-examine the complainant regarding the puzzling interaction between Karen and the complainant: whether they treated each other as friends, rivals, or strangers. [203] The jury was left to arrive at the possible false conclusion that the complainant had acted as a good Samaritan and assisted an acquaintance who had been raped. While these points were not central to the elements of the charged crimes, by preventing Jovanovic from seeking to clarify the complainant's misinformation, he was unable to call into question the resultant image of the complainant as responsible, trustworthy, accurate and innocent.

The Spectator Article

In addition, the trial court erred in permitting the People to place in evidence the full text of a news article from the Columbia University campus newspaper, the Spectator, reporting the story of a woman named Sharon Lopatka, who in October 1996 was killed by a man with whom she had initiated an on-line relationship.

The foundation for the prosecutor's use of the article was Jovanovic's reference, in one of his e-mails, to a Spectator article about Sharon Lopatka, in response to the complainant's request for suggested plots for a snuff film. On the basis of that reference, the trial court permitted the prosecutor to read into the record the full text of the article in the course of the complainant's direct examination, apparently on a theory that judicial notice could properly be taken of the article. Defense counsel was not permitted any voir dire on the issue of whether this article had been the subject of an on-line conversation between the complainant and Jovanovic, or indeed what the complainant knew of the story.

Had counsel been permitted a brief voir dire, the court would have found that, as the complainant testified immediately after the article was placed in evidence, in fact she had not understood Jovanovic's reference to have been to that particular article. Consequently, there was no proper foundation for its admission into evidence. Nor was the introduction of the complete article into evidence justified by the concept of "judicial notice," which applies to the introduction of indisputable facts and matters of common knowledge (see, Prince, Richardson on Evidence § 2-201 et seq. [Farrell 11th ed]).

Moreover, its prejudicial impact was not properly considered. The article told the story of Sharon Lopatka's on-line acquaintance with a Maryland man whom she had informed of her desire to be tortured and killed, and about her ultimate death, allegedly at the hands of this man. The introduction of the full text was unnecessary, and because of its potentially inflammatory [204] effect under the circumstances, its introduction was improper, and only served to compound the prejudicial impact of the other errors.

Accordingly, the judgment of the Supreme Court, New York County (William Wetzel, J.), rendered May 29, 1998, convicting defendant, after a jury trial, of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree and assault in the third degree, and sentencing him to a term of 15 years to life on the kidnapping conviction concurrent with lesser sentences on the remaining convictions, should be reversed, on the law, and the matter remanded for a new trial.

MAZZARELLI, J. P. (concurring in part and dissenting in part).

While I agree with the majority's conclusion that a new trial is required because the trial court misapplied the Rape Shield Law when it precluded material evidence which may have affected the conviction on the kidnapping and sex abuse counts, a different perspective informs my analysis. Further, I would affirm the defendant's conviction on the assault charges.

I agree, for the reasons set forth in the majority opinion, that the introduction of the full text of the Spectator article was improper. I share the view that the erroneous admission of this evidence had an enormous prejudicial impact on the defense. With respect to the redacted e-mails, I would also find that the complainant's statements concerning her interest in sadomasochistic practices should have been admitted, because the Rape Shield Law (CPL 60.42), which is designed to preclude introduction of "[e]vidence of a victim's sexual conduct," is not meant to exclude statements of interest in sex (see, People v Kellar, 174 AD2d 848, 849, lv denied 78 NY2d 1128; People v Hauver, 129 AD2d 889, 890). Further, even were these statements to be covered by the statute, I would find that they should have been admitted under the interests of justice exception set forth in CPL 60.42 (5), because they are relevant to both the complainant's state of mind and defendant's perception of her thinking. The complainant's discussion of these topics in her electronic conversations with the defendant preceding their date was necessary to provide the jury with an accurate factual narrative.

However, I disagree with the majority that the complainant's conversations concerning sex with other individuals were improperly excluded under CPL 60.42, and I would also find that the third redacted November 20th e-mail was properly [205] redacted because it concerned a direct statement relating to the complainant's prior conduct, her sadomasochistic relationship with her boyfriend. This redaction was also appropriate because the transmission described behavior which would serve only to disparage the complaining witness's reputation.

The defense argues that the third redacted November 20th e-mail should have been admitted in its entirety pursuant to CPL 60.42 (4), to support a claim that the complaining witness's boyfriend could have been the source of her injuries. I disagree. The defense was not prevented from putting this theory before the jury as it was allowed to question the complaining witness's boyfriend himself as to whether he had inflicted any bruising upon the complainant in the days preceding the incident. This is the only bruising relevant to this case. The determination to limit inquiry to this issue was not an improvident exercise of discretion, and again comports with the purpose of the Rape Shield Law. This is especially true when viewed within the context of the main theory articulated by the defense, which is that the alleged violent acts did not take place. Based on this position, details of prior consensual, violent behavior were properly redacted from the e-mail as they would be irrelevant to the defense on the kidnapping and sexual abuse counts.

Unlike the majority, I would not find the third redacted November 20th e-mail admissible under CPL 60.42 (5), the interest of justice exception to the Rape Shield Law. Since CPL 60.42 (5) is designed to allow the introduction of material which has been deemed presumptively inadmissible, the proffered evidence merits careful scrutiny (see, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 34). Given the complainant's right to sexual self-determination, I would find that the inflammatory nature of the evidence of her prior sexual conduct would, in the eyes of the jury, outweigh the probative value of this evidence. Presenting this information could mislead the jury to conclude that the complainant was more likely to consent to the charged sexual offenses because she had previously consented to similar, violent acts (see, People v Williams, 81 NY2d 303 [precluding evidence that complainant had formerly engaged in group sex in a gang rape prosecution]).

Further, the majority states that, "the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that [206] consent was withdrawn" (emphasis in original). I strongly disagree. The encounter should be evaluated on the basis that the complainant, as any person engaging in sexual activities, had a continuing legal right to withdraw her consent to any of the actions taking place in Jovanovic's apartment. The only evidence relevant to that issue is that which relates to the events in question.

The Rape Shield Law was expressly drafted for the purpose of protecting those persons who are sexually active outside a legally sanctioned relationship. It serves the very important policy objective of removing certain impediments to the reporting of sex crimes. Specifically, the law was drafted to encourage victims of sex offenses to prosecute their attackers without fear that their own prior sexual activities, regardless of their nature, could be used against them at trial. In enacting the Rape Shield Law, the Legislature sought to prevent muddling the trial with matters relating to a victim's prior sexual conduct which have no proper bearing on the defendant's guilt or innocence, but only serve to impugn the character of the complainant and to prejudice the jury. To limit its applicability and protections as the majority holds would only serve to turn the clock back to the days when the main defense to any such charge was to malign the complainant. Here, where a victim's sexual preferences are widely disapproved, it is crucial that evidentiary determinations be made with heightened concern that a jury may act on the very prejudices that the statute seeks to exclude.

Additionally, I would affirm the defendant's convictions for second- and third-degree assault. Penal Law § 120.05 (2) provides that a person is guilty of second-degree assault when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person * * * by means of a deadly weapon or a dangerous instrument," in this case by scalding the complaining witness with hot wax. Further, Penal Law § 120.00 (1) provides that a person is guilty of third-degree assault when "[w]ith intent to cause physical injury to another person, he causes such injury to such person," here by biting the complaining witness. As the majority correctly notes, neither statutory section provides for a consent defense, nor do these sections list lack of consent as an element to be proven by the prosecution (cf., Penal Law § 120.05 [5] ["without * * * consent" is an element of the offense]; Penal Law § 130.05 [consent established as a defense to various degrees of sexual abuse crimes]). While several New York cases, decided over 25 [207] years ago, have indicated that consent, if intelligently given, can be a defense to a charge of assault (People v Steinberg, 190 Misc 413, 416-417 [assault charge sustained where nurse purported to vaccinate people against smallpox but injected only water]; see also, People v Freer, 86 Misc 2d 280 [third-degree assault charge sustained in altercation between football players which took place after players got up from a pile-up]; People v Lenti, 44 Misc 2d 118 [indictment for third-degree assault after fraternity hazing was sustained since the students did not consent to physical harm]), this rule has not been crystalized in this State. Moreover, a number of cases from other jurisdictions have held that the consent defense is not available to an assault charge in the context of sadomasochistic activities (see generally, People v Samuels, 250 Cal App 2d 501, 58 Cal Rptr 439, cert denied 390 US 1024 [defendant charged with assault arising from sadomasochistic activities could not rely on consent defense]; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051 [same]; State v Collier, 372 NW2d 303 [Iowa] [same]). Given the facts of this case, I would find that the court's instruction that consent was not a valid defense to the assault charge was not error.

Further, despite the evidentiary errors which require a new trial on the kidnapping and sexual abuse counts, I would find the complaining witness's testimony was sufficient to support both of these convictions (People v Arroyo, 54 NY2d 567, cert denied 456 US 979), and, in the circumstances, hot candle wax was appropriately considered a dangerous instrument (Penal Law § 10.00 [13]). Moreover, the complainant's testimony was corroborated by a neighbor who heard sounds as if someone were "undergoing root canal" from defendant's apartment at the time in question, by the complaining witness's prompt outcries to five individuals, some of these individuals' observations of the complaining witness's injuries, the lab results as to her clothing, and the e-mails sent between the complaining witness and defendant subsequent to the incident. I find no basis to disturb the jury's determination to credit this testimony (People v Prochilo, 41 NY2d 759).

In addition to dissenting from portions of the majority opinion, I am compelled to write separately to emphasize the fundamental importance of the Rape Shield Law, which is designed to assure that a defendant is not allowed to evade responsibility for his criminal acts by impugning the reputation of a complainant.

Motion seeking leave to file an amicus curiae brief denied.

Judgment, Supreme Court, New York County, rendered May 29, 1998, reversed, on the law, and the matter remanded for a new trial. Motion seeking leave to file an amicus curiae brief denied.

[1] "Instant messages" differ from e-mail in that they are used only when both people are on line simultaneously, and the messages, when sent, appear directly on the computer screen of the recipient, rather than going to a "mailbox" for later retrieval.

[2] is used to mean "grin" in on-line shorthand.

[3] The complainant used the word "fingered" to indicate initiating an on-line conversation with a person she didn't previously know, whose user ID she obtained from a Columbia on-line ID directory.

[4] The defense explains that The Vault is a club catering to sadomasochists, and a "pushy bottom" is a submissive partner who pushes the dominant partner to inflict greater pain.

[5] There is no available defense of consent on a charge of assault under Penal Law § 120.00 (1) and § 120.05 (2) (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v Duffy, 79 NY2d 611), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v Brown, 154 NJ Super 511, 512, 381 A2d 1231, 1232; People v Samuels, 250 Cal App 2d 501, 513-514, 58 Cal Rptr 439, 447, cert denied 390 US 1024; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051; State v Collier, 372 NW2d 303 [Iowa]). And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury (see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 120, at 119), we need not address here whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured. Defendant's claim that there is a constitutional right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such conduct were to result in serious injury, the consensual nature of the activity would not justify the result.

Robert M. Morgenthau, District Attorney of New York County, New York City (John Martin of counsel), for plaintiff. Orzick & Hupert, New York City (Eric S. Orzick of counsel), for defendant.

FELICE K. SHEA, J.

The issue presented by the People's motion for a pretrial [102] Frye^[2] hearing is whether a male defendant who has been sexually assaulted can introduce expert testimony at trial regarding rape trauma syndrome without first establishing that such testimony has attained acceptance within the scientific community. The motion was made in response to defendant's notice of intention to call an expert at trial who will testify that defendant exhibited symptoms of male rape trauma syndrome^[3] and that the syndrome explains why defendant failed to report a sexual assault to the police.

Defendant is charged with two counts of grand larceny in the third degree arising out of a homosexual incident between the complainant and defendant. The People allege that the incident was consensual in nature and that defendant thereafter extorted money from the complainant by threatening to expose him as a homosexual and to bring charges of "homosexual rape". Defendant contends that the complainant in fact "raped" him and that defendant's subsequent actions were lawful efforts to obtain compensation for this wrong.^[4]

The People concede that New York law permits expert testimony of rape trauma syndrome without a Frye hearing. However, the People argue, assuming the truth of defendant's factual contentions, that rape trauma syndrome evidence is inadmissible without a Frye hearing because defendant was sodomized and not raped. The People argue further that there is no precedent in New York or in any other jurisdiction for accepting expert testimony of a male sexual victimization syndrome, and further, that because the victim is male, defendant's proffered testimony would be, at best, a variation on rape trauma syndrome, his reaction to sexual assault would be different from that of a female victim, and the scientific acceptance of such testimony would need to be tested. Defendant asserts that male victims of sexual assault suffer essentially the same posttraumatic stress symptoms as do female rape victims and that disparate treatment of defendant's proposed expert testimony would deny him equal protection of law.

[103] Pursuant to the Frye rule, which governs in New York State, expert testimony relating to scientific evidence is admissible at trial only if it is generally accepted as reliable by the relevant scientific community.^[5] (People v Wesley, 83 N.Y.2d 417, 422-423.) However, a Frye hearing to determine acceptance in the scientific community is not needed in every case in which scientific evidence is proffered. In Matter of Lahey v Kelly (71 N.Y.2d 135, 144) the Court of Appeals affirmed convictions based on drug test results admitted at trial, finding that "[n]either expert testimony nor detailed findings by the scientific community are essential before scientific tests or procedures are recognized * * * The court may find scientific tests reliable based on the general acceptance of the procedures as shown through legal writings and judicial opinions." (Accord, People v Middleton, 54 N.Y.2d 42, 49-50 [bite mark evidence]; People v Magri, 3 N.Y.2d 562, 566 [radar]; cf., People v Jeter, 80 N.Y.2d 818, 820-821 [Frye hearing needed to determine admissibility of spectrographic voice evidence].)

In People v Taylor (75 N.Y.2d 277, 286), New York's highest Court analyzed the scientific literature on rape trauma syndrome and held that although "there is no single typical profile of a rape victim * * * the relevant scientific community has generally accepted that rape is a highly traumatic event that will in many women trigger the onset of certain identifiable symptoms." The Taylor case affirmed the propriety of admitting expert testimony concerning the syndrome at a rape trial to explain conduct of the victim after the attack. The issue here is whether the Taylor holding should be applied in a case where the victim of the sexual assault is a man. Do the case law, legal writings and scientific literature support the conclusion that the scientific community accepts a male rape trauma syndrome about which expert testimony might assist a jury?

For purposes of this motion, the court must assume that the facts are as defendant alleges and that the defendant was sexually assaulted. Penal Law § 130.35 (1) defines rape in the first degree as forcible intercourse between a man and a woman. Deviate sexual intercourse by force where a man is the victim of another man is proscribed by Penal Law § 130.50 (1) defining sodomy in the first degree. It is clear, however, that the rape statute does not define the victims who may claim to have [104] suffered rape trauma syndrome in the courts of New York. Rape trauma syndrome is "a therapeutic and not a legal concept." (People v Taylor, supra, at 287.) Although the therapeutic concept of a posttraumatic stress syndrome associated with sexual assault was developed by studying women rape victims, New York courts, relying on People v Taylor (supra) have held that other victims of sexual assault may exhibit an analogous syndrome. Female children who are the victims of rape or attempted rape may suffer from what scientists label "child sexual abuse syndrome" which, under appropriate circumstances, can be explained by expert testimony. (People v Burgess, 212 AD2d 721; People v Naranjo, 194 AD2d 747, lv denied 82 N.Y.2d 900; People v Guce, 164 AD2d 946, 950, lv denied 76 N.Y.2d 986; People v Ivory, 162 AD2d 551, 552). In People v Singh (186 AD2d 285), the terminology employed was "post-traumatic stress syndrome exhibited by victims of child sexual abuse". By approving the admission of expert testimony as to the syndrome without a Frye hearing, the appellate courts have implicitly found the syndrome generally accepted in the scientific community.

Judicial acceptance of a syndrome associated with sexual assault is not limited to cases involving rape or attempted rape. People v Taylor (supra) is authority for the recognition of a child sexual abuse syndrome where a female child was sodomized or otherwise sexually abused, but not raped. (People v Califano, 216 AD2d 574, 575, lv denied 86 N.Y.2d 791; People v Sansevero, 185 AD2d 256; People v Knupp, 179 AD2d 1030 [syndrome recognized but conviction reversed because expert testimony introduced to prove crime took place].)

Expert testimony of child sexual abuse syndrome has been accepted in cases where the victim is male as well. In People v Van Loan (179 AD2d 885), defendant was convicted of aggravated sexual abuse, sodomy in the first degree and second degree based on sexual assault of a male child. The Third Department, relying on People v Taylor (supra), approved the admission of testimony by a child therapist to explain the victim's behavior. (See also, People v Keindl, 68 N.Y.2d 410, 422; People v Mercado, 188 AD2d 941, 942 [syndrome recognized in male child victim but conviction overturned because testimony of social worker too broad].)

New York courts have not addressed the issue of the applicability of rape trauma syndrome to adult male victims of sexual assault. It would appear that the question has arisen only in Minnesota, where, on the appeal of a murder conviction, [105] the Minnesota Supreme Court held that the trial court did not err in excluding expert testimony on male sexual victimization syndrome. The trial court had held a pretrial hearing and found that the defendant's witness did not establish that the theory of male sexual victimization reached the required level of scientific acceptance. (State v Borchardt, 478 NW2d 757 [Minn 1991].)

The Minnesota case is of limited value in deciding the issue before this court. At the time of Borchardt (supra), rape trauma syndrome had not been recognized as scientifically accepted in Minnesota.^[6] No review of the scientific literature was undertaken and the trial court based its ruling on the testimony of one psychologist/family therapist. The appellate court paid deference to the trial court's broad discretion to make evidentiary rulings and found that the opinion of the proposed expert would not have assisted the jury in any case. Moreover, Borchardt was decided in 1991 and the subsequent body of research since that time further diminishes its persuasive value.

A review of literature describing the effect of sexual assault on men reveals that male victims, both heterosexual and homosexual, exhibit a well-defined trauma syndrome similar to and parallel to that found in female victims of rape. No article or study has been cited by the People that suggests otherwise.

The Bureau of Justice Statistics, the statistical agency of the U. S. Department of Justice, in its National Crime Victimization Survey dated August 1995, indicates that about 500,200 rape/sexual assaults were reported by women in 1992-1993.^[7] The Bureau of Justice gives the comparable figure for men as 48,500. Mezey and King, in Male Victims of Sexual Assault (at 1 [1992] [hereinafter Mezey and King, Male Victims of Sexual Assault]), estimate rape of men to be 5-10% of total rapes reported. The American Medical Association, bringing attention to an epidemic of sexual assault, recently reported that males are the victims in 5% of reported sexual assaults. (NY Times, Nov. 7, 1995, at 21, col 1.)

The statistics on male sexual assault tell only part of the story. Rape is a notoriously underreported crime and male [106] victims of sexual assault are even less likely than female victims to report their assault.^[8] Not surprisingly, studies of the effects of sexual assault on men are based on relatively small numbers of victims.

Male rape trauma syndrome is described as "a common reaction in which depression, anger, guilt, fear of being homosexual, sexual malfunctioning, flashbacks, and suicidal feelings are experienced from weeks to years after assault * * * [L]ike women, male rape survivors experience a disruption in their biopsychosocial functioning." (Isely, Adult Male Sexual Assault in the Community: A Literature Review and Group Treatment Model, in Rape and Sexual Assault III, A Research Handbook 161, 165 [Burgess ed 1991].) Mezey and King (The Effects of Sexual Assault on Men: A Survey of 22 Victims, 19 Psychological Medicine 205, 207 [1989] [hereinafter Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims]) report that the male victims described major detrimental effects on their lives and exhibited an increased sense of vulnerability, anger, damaged self-image, emotional distancing, a need for security precautions, sexual dysfunction, and phobias. The authors conclude (at 205) that "[t]he immediate and long term responses [of male victims] were very similar to those described in female victims of rape." "[L]ike women, men often react to extreme personal threat with frozen helplessness * * * There were striking similarities between the reactions of male victims and those reported for women who have been sexually assaulted." (Mezey and King, Male Victims of Sexual Assault, op. cit., at 8, 10.) Goyer and Edelman (Same-Sex Rape of Nonincarcerated Men, 141 Am J Psychiatry 576 [1984]) relate that male victims of sexual assault experience "mood disturbances (e.g., fear, depression, anger), somatic disturbances (e.g., in sleep, appetite, digestion) * * * difficulties in peer relationships * * * and * * * subsequent sexual problems." (See also, Josephson, The Male Rape Victim: Evaluation and Treatment, 8 J Am Coll Emergency Physicians 14 [1979]; Cotton and Groth, Sexual Assault in Correctional Institutions: Prevention and Intervention, in Victims of Sexual Aggression, Treatment of Children, [107] Women and Men 127, 131-132 [Stuart and Greer eds 1984]; Kaufman, Rape of Men in the Community, in Victims of Sexual Aggression, Treatment of Children, Women and Men 156, 164 [Stuart and Greer eds 1984].) In all of these studies, the reactions and feelings expressed by male victims of sexual assault were found to be similar to those of females traumatized by rape.

A common characteristic of male and female rape victims is delay in reporting the crime. In one study of male victims, most men did not report the sexual assault to anyone in the immediate aftermath. (Mezey and King, Male Victims of Sexual Assault, op. cit., at 5.) A study comparing survivors of male sexual assault with Vietnam veterans found common characteristics of trauma and noted that "delayed response * * * has been observed in a significant number of male rape survivors". (Evans, Brother to Brother: Integrating Concepts of Healing Regarding Male Sexual Assault Survivors and Vietnam Veterans, 2 The Sexually Abused Male, 57, 63 [Hunter ed 1990]; see also, Groth and Burgess, Male Rape: Offenders and Victims, 137 Am J Psychiatry 806, 810 [1980].)

There are other similarities between male and female sexual assault. A number of authorities state that male sexual assault, as in the case of female rape, is an expression of anger, power, dominance and control over another. (See, e.g., Kaufman, Divasto et al., Male Rape Victims: Noninstitutionalized Assault, 137 Am J Psychiatry 221, 223 [1980]; Evans, op. cit., at 62; Rochman, op. cit., at 40; Cotton and Groth, op. cit., at 131-132; Mezey and King, Male Victims of Sexual Assault, op. cit., at 131; Groth and Burgess, op. cit., at 809.)

There are studies that comment on differences between male and female victims of sexual assault. Men are likely to be abused more violently and by multiple attackers, to sustain more serious injuries, to feel more stigmatized and, as noted supra, men are less likely to report the crime against them. (Isely, op. cit., at 164-165; Kaufman, Divasto et al., op. cit., at 223; Kaufman, op. cit., at 158.) Male victims appear to be more reluctant to report their assaults for a number of reasons. Heterosexual male victims may feel that their sexual orientation is called into question and homosexual male victims fear that their sexual preference may be revealed. There is a societal belief that a man should be able to defend against sexual assault. (Kaufman, op. cit., at 163.) Homosexuals may perceive the police to be unsympathetic. (Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims, op. cit., at 207.)

[108] Commentators have found two emotional styles of response to the trauma of sexual assault. Fifty percent of women in a well-known study reacted in a "controlled" style and were calm, composed, subdued, and withdrawn. Fifty percent were found to react in an "expressive" style — with crying, sobbing, smiling, restlessness. (Burgess and Holmstrom, Rape Trauma Syndrome, 131 Am J Psychiatry 981, 982 [1974].) By contrast, in Kaufman, Divasto et al. (op. cit., at 223), 79% of the male sample studied exhibited a "controlled" reaction. The predominance of a controlled reaction among men may reflect society's view that it is unmanly for men to express emotion.

The differences noted in the literature between male and female victims of sexual assault demonstrate that male victims tend to be more traumatized, less likely to report, and less likely to be openly emotional. Some men may question their sexual identity. (Rochman, op. cit., at 42.) These differences between the reactions of men and women do not cast doubt on the reliability of expert testimony as to male rape trauma syndrome any more than would differences in the reactions of individual female rape victims (see, People v Taylor, supra, at 286). The essential and underlying fact remains that victims of trauma "suffer predictable psychological harm" and that "traumatic syndromes have basic features in common". (Herman, Trauma and Recovery 3 [Basic Books 1992].) "Traumatic events * * * overwhelm the ordinary human adaptations to life * * * They confront human beings with the extremities of helplessness and terror, and evoke the responses of catastrophe." (Id., at 33.)

The American Psychiatric Association in its current Diagnostic and Statistical Manual of Mental Disorders (at 424 [4th ed rev 1994]) lists sexual assault as one of the extreme traumatic stressors that can result in characteristic symptoms of posttraumatic stress disorder.^[9] The response to the traumatic event will involve fear, helplessness, horror, persistent reexperiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, numbing of general responsiveness and persistent symptoms of arousal. The diagnostic criteria for posttraumatic stress disorder contained in the Diagnostic and Statistical Manual were influential in persuading the Taylor Court (supra) that the scientific community "has accepted that rape as a stressor can have marked, identifiable effects on a [109] victim's behavior". (People v Taylor, supra, at 287.) The Court of Appeals went on to note that "victims of rape will often exhibit peculiar symptoms — like a fear of men — that are not commonly exhibited by victims of other sorts of trauma" (supra [citations omitted]). Nothing in the peculiar reactions of male victims of sexual assault places them outside the medical definition of posttraumatic stress disorder or diminishes the validity of the conclusion that a syndrome of male sexual victimization is accepted in the scientific community. The scientific literature amply supports the conclusion that expert testimony regarding sexual assaults against men comes within the ambit of the holding in Taylor.

Although the court need not reach the equal protection issue raised by defendant (Matter of Syquia v Board of Educ., 80 N.Y.2d 531, 535), the conclusion drawn herein is consistent with the trend away from gender-based classifications.^[10] In short, legal authorities, scientific writings, constitutional doctrine and logic all favor acceptance of the principle that expert testimony concerning rape trauma syndrome as applied to male victims is scientifically reliable and may, when appropriate, be admitted to aid a jury in understanding the sequelae of sexual assault against a man. Accordingly, no Frye hearing is needed and the People's motion is denied.

[1] Name used herein is fictitious for purposes of publication.

[2] Frye v United States, 293 F 1013.

[3] A more exact description might be "male sexual assault trauma syndrome" or "male sexual victimization syndrome" since under New York law only women can be victims of rape in the first degree. (Penal Law § 130.35.)

[4] The parties disagree as to whether the evidence of male rape trauma syndrome will be applicable to one or both counts of the indictment. This issue and all questions as to the qualifications of defendant's expert as well as questions of admissibility or limitations on the proposed testimony are to be resolved at trial.

[5] Cf., Daubert v Merrell Dow Pharms., 509 US 579, which rejects the Frye requirement in Federal courts and holds that the "general acceptance rule" is superseded by the Federal Rules of Evidence.

[6] But see, Dahl v State, 1995 WL 351686 (Minn), where in 1995 a Minnesota appellate court approved the use of expert psychological testimony with regard to characteristics exhibited by child victims of sexual abuse.

[7] These figures refer to victims age 12 or older and are based on a redesigned questionnaire which captured more incidents of violence than did older methodology. (See, Schafran, Op-Ed, NY Times, Aug. 26, 1995, at 19, col 2.)

[8] Only 1 in 10 men report their sexual victimization according to a study reported in Isely, Adult Male Sexual Assault in the Community: A Literature Review and Group Treatment Model (Rape and Sexual Assault III, A Research Handbook 161 [Burgess ed 1991]). (See also, Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims, 19 Psychological Medicine 205, 207 [1989]; Rochman, Silent Victims: Bringing Male Rape Out of the Closet, The Advocate: The National Gay and Lesbian News Magazine, July 30, 1991, at 38, 40.)

[9] It is noteworthy that an earlier version of the Diagnostic and Statistical Manual of Mental Disorders cited in People v Taylor (supra, at 287) listed rape as a stressor in lieu of the broader term sexual assault.

[10] See, e.g., People v Liberta, 64 N.Y.2d 152, 173, cert denied 471 US 1020 (females not exempt from criminal liability for forcible rape under Penal Law § 130.35); People v Reilly, 85 Misc 2d 702 (sodomy statute, Penal Law § 130.50, construed as gender neutral); Matter of Jessie C., 164 AD2d 731, appeal dismissed 78 N.Y.2d 907 (Penal Law § 130.20 [1] definition of sexual misconduct unconstitutionally underinclusive because directed at males only); accord, People v Dieudonne, 143 Misc 2d 559; see also, statutory rape statutes (Penal Law §§ 130.25, 130.30, made gender neutral by L 1987, ch 510, §§ 1, 2.) According to a 1995 table of statutes compiled by the National Victim Center in Arlington, Virginia, only Alabama, Georgia, Idaho, Kansas, Mississippi and New York do not have a gender neutral statute for forcible rape.

[616] Julia Karol Pearson, Assistant Public Advocate, Department of Public Advocacy, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, James Hays Lawson, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Sotoy J. Minter, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Madison Circuit Court convicting him of first-degree sodomy and first-degree burglary, enhanced by the status offense of persistent felony offender (PFO) in the second-degree. For these offenses, Appellant was sentenced to thirty-five years' imprisonment.

On appeal Appellant raises the following arguments: (1) the trial court erred by denying his motion for a directed verdict on the burglary charge because the Commonwealth failed to prove the statutory element of criminal intent; (2) the trial court improperly applied KRE 412 to prohibit admission of evidence of the victim's sexual history; and (3) the trial court erred in allowing the Commonwealth to proceed to trial on the PFO charge. For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

According to evidence presented at trial, Appellant attended a party at an apartment next door to the apartment of Larry Griffin and his girlfriend, Beth, who were also attending the party. Appellant, Larry, [617] and many others attending the party became intoxicated. Because of his intoxication, Larry decided to leave, so Beth asked Appellant to help her get Larry back to their apartment. Upon arriving at his apartment, Larry fell asleep and Beth returned to the party. Larry testified that the next thing he remembered was waking up with Appellant on top of him, holding him down by the shoulders. Larry testified that he was resistant and repeatedly asked Appellant to leave, but that Appellant was too strong and ultimately overpowered him, forcibly imposing upon him an act of anal intercourse. After the incident, Larry, bleeding from his rectum and in pain, contacted police and was taken to the emergency room by ambulance, where a rape kit examination was performed. DNA results from an anal swab taken from Larry were a positive match for Appellant.

Some seventeen months after the incident, Appellant was indicted and charged with first-degree sodomy, first-degree burglary, and assault in the fourth-degree.^[1] Only a few months of the delay can be attributed to the DNA testing. Trial was scheduled for six months later, twenty-three months' after the event. Just one month before the first scheduled trial date, the Commonwealth procured a superseding indictment charging Appellant with the same three offenses, but adding a fourth count charging Appellant with being a persistent felony offender in the second-degree. Appellant moved to dismiss the additional count or to exclude it from the scheduled trial. The trial court denied the motion. The case proceeded to trial in February 2012, some twenty-five months after the alleged crimes occurred.

At trial, Appellant disputed Larry's version of the incident. Appellant insisted that the sexual encounter was entirely consensual. He claimed that after Beth returned to the party, Larry invited him into the apartment and invited Appellant's sexual advances. Appellant testified that Larry did not resist, but was instead a willing participant in the encounter.

At the conclusion of the trial, the jury returned a verdict convicting Appellant as set forth above. The trial court entered final judgment imposing the sentence as recommended by the jury—thirty-five years' imprisonment.

II. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON THE BURGLARY CHARGE

Appellant argues that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of first-degree burglary because the evidence presented at trial was insufficient to allow a reasonable jury to reach a guilty verdict. The standard for reviewing a motion for directed verdict is well established:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, [618] the reviewing court may only direct a verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.; see also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).

Appellant argues that he was entitled to a directed verdict on the burglary charge because the evidence at trial failed to establish that he had the requisite intent. KRS 511.020, which establishes the offense of first-degree burglary, requires that to be guilty of the crime, one must enter or remain unlawfully in a building "with the intent to commit a crime." Appellant contends that his own testimony asserting his belief that he had been invited into Larry's apartment for the purpose of engaging in consensual sex leaves no room for an inference by the jury that he was in the apartment with the intent to commit a crime. We disagree.

Sufficient evidence was presented at trial to support a reasonable juror's belief that Appellant met the statutory standard for first-degree burglary. This evidence included Larry's direct testimony that he did not invite Appellant into the apartment, that he repeatedly asked Appellant to leave the apartment, and that he did not consent to the sexual encounter. The physical evidence of Larry's injuries provides circumstantial evidence supporting the Commonwealth's case.

Our courts have long held that a jury is free to believe the testimony of one witness over the testimony of others. See Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky.App.1977). In ruling on Appellant's motion, the trial court was required to construe conflicting evidence in the light most favorable to the Commonwealth. Benham, 816 S.W.2d at 187. The testimony of a single witness is enough to support a conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky.2005) (citing LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky.1962)).

Appellant's argument also fails because matters of credibility and of the weight to be given to a witness's testimony are solely within the province of the jury. The appellate courts cannot substitute their judgment on such matters for that of the jury. Brewer v. Commonwealth, 206 S.W.3d 313, 319 (Ky.2006) (citing Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.1994)). Therefore, we may not simply reject Larry's testimony and instead choose to believe Appellant's version because "[d]etermining the proper weight to assign to conflicting evidence is a matter for the trier of fact and not an appellate court." Washington v. Commonwealth, 231 S.W.3d 762, 765 (Ky.App.2007)^[2] (citing Bierman v. Klapheke, 967 S.W.2d 16, 19 (Ky.1998)).

Thus, based on the evidence as a whole, it was not unreasonable for a jury to conclude Appellant entered Larry's apartment without permission, with the intent to sodomize him, and in doing so, caused him physical injury. Accordingly, the trial court did not err in denying Appellant's motion for a directed verdict on the first-degree burglary charge.

III. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE UNDER THE RAPE SHIELD RULE, KRE 412

Next, we consider Appellant's argument that the trial court denied him the opportunity to present a complete defense by barring testimony that the victim had on other occasions engaged in homosexual activity. The trial court excluded the testimony based upon KRE 412, Kentucky's [619] "Rape Shield Law" and also because it was hearsay.

Appellant sought to introduce at trial a witness's testimony that Larry's girlfriend, Beth, had said that on multiple occasions she caught Larry engaging in sexual acts with men. The trial court refused to admit the proposed testimony because KRE 412 bars the introduction of evidence of an alleged victim's sexual activity when its only relevance is to prove the "victim's sexual predisposition" or that the "victim engaged in other sexual behavior." Appellant contends that the testimony should have been admitted to substantiate his claim that Larry falsely charged that he was raped in order to conceal the fact that he was gay and to avoid Beth's anger that he had again engaged in such sexual activity. In that context, it is clear that the proffered testimony was subject to the exclusion afforded by KRE 412. Evidence that Larry had consensually engaged in other sexual activity with men suggests nothing other than a sexual predisposition for such activity, exactly what the rule prohibits.

This general prohibition is, however, subject to certain exceptions in a criminal case. Specifically, under KRE 412(b)(1), the evidence is admissible in a criminal case:

A. To prove that a person other than the accused was the source of semen, injury, or other physical evidence;

B. To prove consent, if the evidence involves instances of sexual behavior by the alleged victim with the person accused of the sexual misconduct;

C. If the evidence pertains directly to the offense charged.

None of those exceptions apply to the evidence Appellant sought to have admitted. The testimony did not show that someone other than Appellant might have been the source of the semen found on the victim, and indeed, Appellant concedes that it was his. It was not evidence of any prior sexual behavior the alleged victim had with the Appellant, and to the contrary, Appellant never claimed that consent was based upon prior sexual experience with the alleged victim. And finally, the proposed testimony does not pertain directly to the specific offense charged beyond the prohibited purpose of showing Appellant's alleged sexual predisposition to homosexual conduct. The testimony fits within none of the exceptions to the general rule against admitting such evidence.

Appellant implies that because the victim said that he was "straight," that is, he claimed he was not predisposed toward gay sexual relations, evidence that he had voluntarily engaged in other homosexual conduct acquired a unique relevance. We disagree. There is no doubt that KRE 412 operates to shield putative victims from disclosure of prior sexual behaviors that have no relevance to the offense on trial except to cast a negative light upon the alleged victim. The purpose of the rule and the language of the rule allow for no differentiation between heterosexual behavior and homosexual behavior. Accordingly, the testimony was inadmissible under KRE 412 because it is evidence of "other sexual behavior" that is offered to cast doubt on Larry's testimony with evidence of his alleged prior sexual behavior and his alleged sexual predisposition.

Citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Appellant additionally argues that the application of KRE 412 to prohibit the proffered testimony curtailed his ability to present a complete defense. We find this argument unpersuasive. Appellant's defense was that Larry consented [620] to the sexual conduct but later claimed that he was forcibly compelled to engage in the sexual act. It bears emphasis that Chambers itself makes clear that "the right to confront and to cross examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal process." 410 U.S. at 295, 93 S.Ct. 1038.

In Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky.2010), we addressed a similar argument, there relating to the use of KRE 412 to bar the admission of evidence pertaining to a juvenile victim's prior sexual behavior. In that case we recognized that the exclusion of evidence of a victim's prior sexual history could, in some circumstances, unconstitutionally impinge upon a defendant's right to present a complete defense. We required a balancing of the competing interests, weighing the probative value of the proffered evidence against KRE 412's purpose of protecting the victim's privacy and eliminating unduly prejudicial character evidence from the trial. 320 S.W.3d at 42-43.

Assessing those interests as they appear in the record before us, we conclude that the trial court made the correct decision. The evidence Appellant sought to admit had only marginal relevance to proving that Larry was motivated to lie about the event. Whether Larry had in the past voluntarily engaged in similar sexual behavior with others, and whether his girlfriend knew about that alleged past behavior and was angry about it, adds little credence to Appellant's defense and its admission would totally undermine the policy implicit in KRE 412. Clearly, the line demarcated in Montgomery was not crossed by the straight-forward application of KRE 412, used merely to exclude Appellant's prior sexual conduct and his sexual predisposition.

In summary, the trial court properly applied KRE 412 under the circumstances of this case, and the trial court's ruling did not violate Appellant's constitutional right to present a full and complete defense.^[3]

IV. THE TRIAL COURT DID NOT ERR IN ALLOWING THE PFO CHARGE TO PROCEED TO TRIAL

Appellant argues the trial court erred in allowing the Commonwealth to proceed to trial on the PFO charge set forth in the superseding indictment. The principal reasons which Appellant asserts for the illegality of the PFO charge is that the late and untimely presentation of that offense to the grand jury offends "fundamental conceptions of justice" and the "community's sense of fair play and decency."

We are not persuaded. The reason for the long delay in bringing the PFO charge has not been presented to this Court. While we decline to speculate among the countless reasons that might explain the delay, we fail to see that the Commonwealth attained any unfair advantage over Appellant by the long delay in bringing forth the PFO charge. More importantly, Appellant identifies no such advantage nor does he identify any specific prejudice he suffered by the timing of the PFO charge.

In Price v. Commonwealth, 666 S.W.2d 749 (Ky.1984) we interpreted the PFO statute as requiring that if the Commonwealth seeks a sentencing enhancement by proof of the defendant's PFO status, then [621] the defendant is entitled to notice of this before the trial of the underlying substantive offense. In reaching this conclusion, we stated that "[a] separate indictment meets this requirement just as does a separate count in the indictment charging the substantive offense to which it refers." Id. at 750. We further noted that "[t]he real issue ... is whether Price was substantially prejudiced by the Commonwealth's procedure of separately indicting him for first-degree robbery and as a first-degree PFO." Id. We then concluded that because Price was arraigned on the PFO charge "nearly one full month" before he proceeded to trial he had reasonable notice and was not deprived of the opportunity to defend against the charge.^[4]Id. We therefore find no undue prejudice to Appellant created by the superseding indictment and no error in the trial court's refusal to dismiss or exclude the PFO charge.

V. CONCLUSION

For the foregoing reasons, the decision of the, Madison Circuit Court is affirmed.

All sitting. All concur.

[1] The fourth-degree assault charge was dismissed at trial in response to the Commonwealth's motion.

[2] Overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.2010).

[3] Having determined the testimony is inadmissible pursuant to KRE 412, we need not address the Commonwealth's argument that the testimony was inadmissible under our hearsay rules. Appellant never addressed this alternate ground for affirming the trial court's exclusion of the proffered testimony.

[4] In connection with this argument Appellant cites to the speedy trial rules contained in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in an attempt to argue that he is entitled to relief because the Commonwealth unreasonably delayed in bringing the PFO indictment. For the reasons explained, however, we are unpersuaded that Barker has any application to the issue we address.

[339] Attorney General, Roy Cooper, by Assistant Attorney General, John F. Oates, Jr., for the State.

Appellate Defender, Staples S. Hughes, by Assistant Appellate Defender, Andrew DeSimone, for defendant-appellant.

McCULLOUGH, Judge.

Thedford Roy Rorie, Jr. ("defendant") appeals from judgments entered upon his convictions for one count of rape of a child in violation of N.C. Gen.Stat. § 14-27.2A, one count of indecent liberties with a child in violation of N.C. Gen. Stat. § 14202.1, attaining habitual felon status as defined in N.C. Gen.Stat. § 14-7.1, and three counts of sexual offense with a child in violation of N.C. Gen.Stat. § 14-27.4A. For the following reasons, we grant defendant a new trial.

I. Background

Defendant was arrested by the Winston-Salem Police Department in October 2012 on charges of first degree rape and taking indecent liberties with a child. In indictments returned by Forsyth County Grand Juries on 7 January 2013, 3 June 2013, and 8 July 2013, defendant was indicted on one count of rape of a child, one count of taking indecent liberties with a child, attaining habitual felon status, and three counts of sexual offense with a child.^[1] Defendant pled not guilty to all charges.

[340] Prior to the case coming on for trial, defendant filed a notice of a potential Rule 412 issue and the State filed a motion in limine to exclude any evidence of the alleged victim's, A.P.'s^[2], prior sexual activity pursuant to Rule 412. These pre-trial matters were among the first issues considered after the offenses were joined and called for trial in Forsyth County Superior Court before the Honorable A. Moses Massey on 15 July 2013.

Concerning defendant's notice of a potential Rule 412 issue, defendant argued prior inconsistent statements or false allegations by A.P. against two young boys living in the same house as A.P. that were similar in nature to the allegations in the present case should be allowed into evidence to attack A.P.'s credibility. In response, the State asserted A.P.'s prior statements regarding the two boys should be excluded because the statements did not amount to false allegations, but were merely the result of a misunderstanding. Moreover, the State asserted the evidence was irrelevant to the charges against defendant. Despite the disagreement over the admissibility of the evidence, both parties acknowledged they did not necessarily believe there was a Rule 412 issue because Rule 412 concerns activity, not statements. Following an in camera review of the interview in which A.P. made the statements at issue, the trial court made a tentative ruling that the evidence was irrelevant and inadmissible. Yet, emphasizing the ruling was tentative, the trial court added that some portion of the evidence may become relevant for impeachment purposes. Lastly, the trial court noted the evidence was covered by Rule 412 and the exceptions to Rule 412 did not appear to apply. The jury was empaneled and the trial proceeded the following day.

The evidence presented at trial tended to show the following: Sometime in the spring or summer of 2011, A.P.'s mother ("Ms. Williams") allowed defendant and defendant's girlfriend ("Ms. Jones"), both of whom she was good friends with, to rent a room for themselves and Ms. Jones' baby in the four-bedroom house in which Ms. Williams, A.P., A.P.'s younger brother T.P., A.P.'s father ("Mr. Payne"), and, from time to time, others lived. A.P. was six years old at the time.

Ms. Williams testified defendant was sweet to her kids, noting that A.P. referred to defendant as "Uncle Peanut." Ms. Williams recalled that defendant and A.P. sometimes called each other boyfriend and girlfriend, but she did not think it was serious and she never observed anything that caused her to believe there was an inappropriate relationship. Although Ms. Williams indicated defendant was not a normal babysitter for her kids, Ms. Williams testified defendant was left alone with A.P., T.P., and Ms. Jones' baby one night in November 2011 while she and Ms. Jones went to play bingo. The evidence tended to show that Ms. Williams and Ms. Jones were away from the house from six or seven o'clock that evening until approximately two o'clock the next morning.

A.P. testified that while Ms. Williams and Ms. Jones were at bingo and her dad was at work, defendant "raped [her] in both parts." When asked more specifically what defendant did, A.P. testified that "[defendant] put his private in [her] private and put his private in [her] butt." A.P. then described in more detail how defendant came into her and T.P.'s bedroom while they were asleep, woke her up, raped her in both parts, let her go back to sleep, and then woke her up a second time and repeated the acts. A.P. also testified that on days prior to the night of the alleged rape, defendant put his private in her mouth. A.P. testified this happened in defendant's bedroom with the door locked while the other adults were outside or somewhere else.

A.P. did not immediately tell Ms. Williams, or anyone else, about what defendant did because she thought Ms. Williams would get angry. Various witnesses testified they did not notice a change in the interactions between defendant and A.P. following the bingo night in question in November 2011.

[341] Ms. Jones became pregnant with defendant's child during the time they lived in the house and gave birth in February 2012. Defendant and Ms. Jones moved out shortly thereafter. It was not until after defendant and Ms. Jones moved out that A.P. told others what had happened.

Soon after defendant and Ms. Jones moved out of the house in March 2012, another man ("Mr. Coles"), his girlfriend, and his girlfriend's three children, all older than A.P., moved in. Sometime thereafter in May 2012, A.P. mentioned to the kids that defendant had raped her. One of the kids then told Mr. Coles, who questioned A.P. and called Ms. Williams to inform her of A.P.'s accusations. Ms. Williams came home upon receiving the call from Mr. Coles, questioned A.P. about the allegations, and took A.P. to the emergency department of the hospital, where A.P. was examined and interviewed.

The sexual assault nurse examiner who examined A.P. reported a "5:00 hymenal notch that [she] was concerned about." The nurse testified that the notch could be consistent with a penetrating injury. The nurse, however, was not certain because the alleged rape had purportedly occurred months earlier. The evidence further revealed that on 13 December 2011, A.P. was previously taken to the emergency department at the hospital complaining of pain while urinating. At that time, the attending physician in the pediatric emergency department performed only an external vaginal examination because there was no report of sexual abuse. Upon observing no abnormalities, the physician diagnosed A.P. with vaginitis. The physician, however, testified at trial that one of the potential causes of vaginitis is sex.

Following the State's evidence, defendant took the stand in his own defense and denied all of A.P.'s allegations. Defendant's recollection of the night in November 2011 when he watched A.P. and T.P. while Ms. Williams and Ms. Jones went to bingo differed from other witnesses' recollection. Particularly noteworthy, defendant testified that Ms. William's sister was at the house the entire time and stayed with the children while he left the house on three separate occasions to deliver marijuana. Defendant also testified that his niece came to the house around eleven o'clock that night and left shortly after midnight. Defendant recalled that he went to check on A.P and T.P. several times throughout the course of the night and each time they were asleep in their bedroom.

Defendant also sought to present evidence of A.P.'s sexual knowledge by introducing evidence that he found A.P. watching a pornographic video. Specifically, on voir dire, defendant testified he caught A.P. and T.P. watching a pornographic DVD of "[a]dults naked having sex[]" one morning while the other adults in the house were still asleep. Defendant stated that he asked A.P. what she was watching and A.P. replied "[she] was trying to find cartoons." Defendant then "immediately cut it off, found them a cartoon movie, [and] put it in." Defendant testified he told Ms. Williams and Mr. Payne what he had seen when they woke up, which caused Mr. Payne to go through and remove all of the adult DVDs. Upon considering the arguments from both sides, the trial court initially overruled the State's objection to the evidence. The trial court, however, later reversed its decision and sustained the State's objection on the basis that the evidence was "irrelevant and is not admissible, particularly given the fact that in this case there is evidence consistent with sexual abuse, physical evidence consistent with sexual abuse."

On 22 July 2013, the jury returned guilty verdicts for the rape of a child, taking indecent liberties with a child, and sexual offense with a child offenses. The following day the jury returned a verdict finding the presence of an aggravating factor, defendant entered a guilty plea to attaining the status of a habitual felon, and the trial court consolidated the offenses between the two judgments for sentencing. Finding the factors in aggravation outweighed the factors in mitigation, the trial court sentenced defendant in the aggravated range to two consecutive terms of 345 to 426 months imprisonment. Furthermore, the trial court ordered defendant to register as a sex offender for life and enroll in satellite based monitoring for life upon his release from imprisonment. Defendant gave notice of appeal in open court following sentencing.

[342] II. Discussion

On appeal, defendant raises the following three issues: whether (1) the trial court erred by excluding evidence that he found A.P. watching the pornographic video; (2) the trial court erred by excluding evidence of A.P.'s prior allegations and inconsistent statements regarding sexual assaults by two boys living in the house; and (3) the trial court's cumulative evidentiary errors deprived him of a fair trial.

Evidence of Pornography

Defendant first contends the trial court erred in excluding the evidence that he found A.P. watching a pornographic video. Defendant argues the evidence was relevant and admissible to establish an alternative basis for A.P.'s sexual knowledge, from which A.P. could fabricate the allegations against defendant. Defendant contends this evidence was important to his case because absent the evidence, a jury would assume a child of A.P.'s age would not have the sexual knowledge to fabricate such allegations.

Expanding on the background, defendant's counsel recognized there was a potential issue with this evidence during the trial and requested to discuss the matter out of the presence of the jury. Following a brief bench conference, the trial court excused the jury and conducted a voir dire. After initially ruling that the defendant could testify about finding A.P. watching the pornographic video, the trial court reconsidered its decision and ruled that the evidence was irrelevant and inadmissible based on its interpretation of State v. Yearwood, 147 N.C.App. 662, 556 S.E.2d 672 (2001).

At the outset of our analysis, we note that it is not clear from the record whether the trial court excluded the evidence solely on the basis of relevance or whether the trial court considered Rule 412. Upon consideration of both on appeal, we hold the trial court erred in either instance.

"The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated." State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (citation and quotation marks omitted), appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000). In a sexual abuse case, evidence regarding the victim's prior sexual behavior is severely restricted pursuant to N.C. Gen.Stat. § 8C-1, Rule 412 (2013) (the "Rape Shield Statute" or "Rule 412"), which provides the sexual behavior of the complainant, defined as "sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial[,]" is irrelevant unless the behavior falls under specified exceptions. N.C. Gen.Stat. § 8C-1, Rule 412(a) and (b). Rule 412 is applicable in trials on charges of rape and sex offense, see N.C. Gen.Stat. § 8C-1, Rule 412(d), and thus clearly applies in this case involving charges of rape of a child and sexual offense with a child. Yet, there is no North Carolina case law interpreting the admission of this particular type of evidence in a child sex offense case.

The State argues A.P.'s viewing of pornography is evidence of A.P.'s sexual activity other than with defendant and, therefore, should be excluded pursuant to Rule 412. In support of its argument, the State relies on State v. Bass, 121 N.C.App. 306, 465 S.E.2d 334 (1996), and contends the trial court's consideration of Yearwood indicates the trial court analyzed the relevancy of the evidence pursuant to Rule 412. Upon review, we find the present case distinguishable from Bass and Yearwood.

The State contends Bass is "[t]he closest case in North Carolina that deals with the issue of `sexual knowledge.'" In Bass, a defendant charged with taking indecent liberties with a child and first degree statutory sexual offense sought to show the six year old complainant had the sexual knowledge to fabricate the allegations by introducing evidence "that the [complainant] had been assaulted in a similar manner some three years earlier." Bass, 121 N.C.App. at 308-09, 465 S.E.2d at 335. The trial court excluded the evidence pursuant to Rule 412 and the defendant appealed the ruling following his convictions. Id. at 309, 465 S.E.2d at 335. Although this Court granted a new trial based on an improper closing argument by the [343] prosecution, it upheld the trial court's exclusion of the evidence of prior abuse concluding "the prior abuse alleged ... [was] `sexual activity' within the ambit of Rule 412." Id. at 309-10, 465 S.E.2d at 336.

In Yearwood, relied on by the trial court, an expert in child psychology testified that the twelve year old complainant was extremely distressed and agitated when they met four days after the assault and opined that the complainant's behavior was consistent with patterns observed in a sexually assaulted victim. Yearwood, 147 N.C.App. at 664, 556 S.E.2d at 674. Yet, following voir dire in which the expert "admitted to some knowledge of alleged incidents involving [the child] and her father, where the father would allegedly strip in front of [the child] and expose her to pornographic material[,]" the trial court denied the defendant the opportunity to explore the purported sexual abuse by the child's father, which occurred four to seven years earlier. Id. at 664-65, 556 S.E.2d at 674. On appeal, the defendant argued the trial court erred because "the evidence [was] relevant to cast doubt on the credibility of [the expert]" because "this exposure may have been the cause of [the complainant's] behavior which led [the expert] to conclude that [the complainant] had been sexually assaulted." Id. at 665, 556 S.E.2d at 675. This Court rejected defendant's argument, noting the defendant "made no showing that the trial court's limitation of the cross examination of [the expert] could have improperly influenced the jury's verdict." Id. This Court further noted that "although the evidence ... was not excluded by [Rule 412], ... the trial court nevertheless did not abuse its discretion in refusing to permit defendant from introducing such evidence because there is no indication in the record that [the] evidence was relevant to [the complainant's] credibility." Id. at 667, 556 S.E.2d at 676.

We find the present case distinguishable. In both Bass and Yearwood, the evidence excluded was evidence of sexual abuse of the complainants occurring years earlier. Furthermore, this Court's holding in Yearwood was primarily based on the fact that "there was abundant evidence, even without the testimony of [the expert], that [the complainant] had been sexually assaulted." Id. at 666, 556 S.E.2d at 675. In this case, the evidence was not evidence of prior sexual abuse but evidence that A.P. was discovered watching a pornographic video, which defendant sought to introduce to explain an alternative source of A.P.'s sexual knowledge. Without the evidence suggesting an alternative source of A.P.'s sexual knowledge in this case, it is likely the jury concluded A.P.'s allegations were true because A.P. was a critical witness against defendant and there was no known basis from which she could have had the knowledge to fabricate the allegations.

Although there is no controlling case law specific to pornography evidence, we find cases from North Carolina and other jurisdictions persuasive. In State v. Guthrie, this Court granted the defendant a new trial upon holding the trial court erred in limiting cross-examination of the victim about a letter she voluntarily wrote to a school friend requesting sex. State v. Guthrie, 110 N.C.App. 91, 428 S.E.2d 853 (1993). This Court explained that the testimony regarding the sexually suggestive letter was not the type of evidence which Rule 412 seeks to exclude because the letter was not evidence of sexual activity, but evidence of language. Id. at 93, 428 S.E.2d at 854. "Therefore, [the] testimony concerning the letter [was] not deemed irrelevant by Rule 412 and was improperly excluded on that basis." Id. at 94, 428 S.E.2d at 854. More closely analogous to this case, in People v. Mason, the Illinois Appellate Court, Fourth District, held the Illinois' Rape Shield Statute, which is similar to North Carolina's, did not bar the admission of evidence that a seven year old victim had viewed sexually explicit videotapes. People v. Mason, 219 Ill.App.3d 76, 161 Ill. Dec. 705, 578 N.E.2d 1351, 1353 (1991). In so holding, the court explained:

that the rape-shield statute does not [bar the evidence] for two reasons. First, the rape-shield statute applies to "prior sexual activity" or "reputation." The viewing of pornographic videotapes by a curious seven year old does not constitute evidence of either. Second, the policies behind the rape-shield statute were the prevention of harassment and humiliation of victims and [344] the encouragement of victims to report sexual offenses. Those policies cannot justify denying a defendant the right to refute evidence which tends to establish sexual abuse took place. The right to confront and call witnesses on one's own behalf are essential to due process.

Id. (internal citation omitted).

Considering Guthrie and Mason, we now hold the evidence that A.P. was discovered watching a pornographic video, without anything more, is not evidence of sexual activity barred by the Rape Shield Statute. Although Rule 412 is applicable in trials involving charges of rape and sex offense, we do not believe it was intended to exclude this type of evidence. Moreover, this evidence was relevant to explain an alternative source of A.P.'s sexual knowledge, from which she could have fabricated the allegations.

The only way this evidence would be excluded is under a proper Rule 403 analysis. Under Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." N.C. Gen.Stat. § 8C-1, Rule 403 (2013). There is no indication the trial court excluded the evidence of A.P. watching the pornographic video in this case based on Rule 403.

Additionally, we hold defendant was prejudiced by the exclusion of the evidence because A.P. was a key witness in the case against defendant and attacking her credibility was central to defendant's defense. Because it is unlikely a child A.P.'s age would have sufficient sexual knowledge to make accusations such as those in this case absent actual abuse, the evidence that A.P. was discovered watching a pornographic video was important to explain an alternative basis for A.P.'s sexual knowledge. Excluding the evidence limited defendant's defense.

Prior Inconsistent Statements

On appeal, defendant also contends the trial court erred in excluding evidence of A.P.'s prior allegations and inconsistent statements about sexual assaults committed by two young boys living in the house as irrelevant under Rule 412. Although we reverse defendant's conviction based on the first issue, we address the merits of this second argument because the issue is likely to recur.

Defendant primarily relies on the following three cases in support of his argument that the trial court erroneously excluded evidence of A.P.'s prior allegations and inconsistent statements: State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982), State v. Ginyard, 122 N.C.App. 25, 468 S.E.2d 525 (1996), and State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (1982). In each of those cases, this State's appellate courts granted new trials to defendants convicted of sexual offenses because the trial courts excluded evidence of prior allegations and inconsistent statements by the alleged victims that the defendants proffered for impeachment purposes. See e.g., (Younger, 306 N.C. at 697, 295 S.E.2d at 456) (Applying a prior version of the Rape Shield Statute, the Court recognized "[w]e have repeatedly held that prior inconsistent statements made by a prosecuting witness may be used to impeach his or her testimony when such statements bear directly on issues in the case. It is our belief that the statute was not designed to shield the prosecutrix from the effects of her own inconsistent statements which cast a grave doubt on the credibility of her story.... In other words, the statute was not intended to act as a barricade against evidence which is used to prove issues common to all trials. Inconsistent statements are, without a doubt, an issue common to all trials.") (internal citations omitted). Upon review of those cases, we agree the trial court erred in this case.

As this Court has recognized,

[T]he "rape shield statute ... is only concerned with the sexual activity of the complainant. Accordingly, the rule only excludes evidence of the actual sexual history of the complainant; it does not apply to false accusations, or to language or conversations whose topic might be sexual behavior." Therefore, false accusations do not fall under the ambit of Rule 412 and are admissible if relevant.

In re K.W., 192 N.C.App. 646, 650, 666 S.E.2d 490, 494 (2008) (quoting State v. Thompson, 139 N.C.App. 299, 309, 533 [345] S.E.2d 834, 841 (2000)) (emphasis and alterations omitted). Accordingly, the trial court's determination in this case that A.P.'s prior allegations and inconsistent statements were "covered by Rule 412" was error. Although these statements involve the mention of sexual behavior, A.P.'s prior allegations and inconsistent statements are not within the purview of Rule 412 and may be admissible to attack A.P.'s credibility.

We do not, however, hold the statements necessarily should have been admitted into evidence at trial. As the Court indicated in Younger, "the relevance and probative value... must be weighed against [the] prejudicial effect." Younger, 306 N.C. at 697, 295 S.E.2d at 456. Thus, whether A.P.'s prior allegations and inconsistent statements come into the evidence at trial should be determined on retrial subject to a proper Rule 403 analysis.

Cumulative Error

In the event we held neither of the evidentiary errors standing alone was sufficient to warrant a new trial, defendant argues the cumulative effect of the errors deprived him of a fair trial. Since we reverse and remand for a new trial on both of the evidentiary issues, we need not further address the effect of cumulative error.

III. Conclusion

For the reasons discussed above, we hold the trial court erred in excluding the evidence that defendant discovered A.P. watching a pornographic video and erred in determining A.P.'s prior allegations and inconsistent statements were irrelevant under Rule 412. Thus, we grant defendant a new trial.

NEW TRIAL.

Chief Judge McGEE and Judge DIETZ concur.

[1] On 3 June 2013, a Forsyth County Grand Jury also returned a superseding indictment changing the date range of the rape of a child and the taking indecent liberties with a child offenses in the 7 January 2013 indictment.

[2] Initials are used throughout the opinion to protect the identities of minor children.