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.

64 N.Y.2d 152 (1984)

Barbara Howe, Rose H. Sconiers and James A. W. McLeod for appellant.

Richard J. Arcara, Erie County District Attorney (John J. DeFranks and Jo W. Faber of counsel), for respondent.

Sarah Wunsch, Anne E. Simon, Laurie Woods, Joanne Schulman and Rhonda Copelon for Center for Constitutional Rights and others, amici curiae.

Elizabeth Holtzman, Kings County District Attorney (Barbara D. Underwood and Evan Wolfson of counsel), for Elizabeth Holtzman, amicus curiae.

Chief Judge COOKE and Judges JASEN, JONES, MEYER and KAYE concur; Judge SIMONS taking no part.

[158] WACHTLER, J.

The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2½ year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order. On this appeal, he contends that because of the exemption for married men, the statutes for rape in the first degree (Penal Law, § 130.35) and sodomy in the first degree (Penal Law, § 130.50), violate the equal protection clause of the Federal Constitution (US Const, 14th Amdt). The defendant also contends that the rape statute violates equal protection because only men, and not women, can be prosecuted under it.

I

Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30, 1980 a temporary order of protection was issued to her by the Family Court. Under this order, the defendant was to move out and remain away from the family home, and stay away from Denise. The order provided that the defendant could visit with his son once each weekend.

On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son. On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up Denise and their son and the four of them drove to defendant's motel.

When they arrived at the motel the friend left. As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the [159] defendant forced Denise to tell their son to watch what the defendant was doing to her.

The defendant allowed Denise and their son to leave shortly after the incident. Denise, after going to her parents' home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant was indicted for rape in the first degree and sodomy in the first degree.

II

Section 130.35 of the Penal Law provides in relevant part that "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * by forcible compulsion". "Female", for purposes of the rape statute, is defined as "any female person who is not married to the actor" (Penal Law, § 130.00, subd 4). Section 130.50 of the Penal Law provides in relevant part that "a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person * * * by forcible compulsion". "Deviate sexual intercourse" is defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva" (Penal Law, § 130.00, subd 2). Thus, due to the "not married" language in the definitions of "female" and "deviate sexual intercourse", there is a "marital exemption" for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be "not married" if at the time of the sexual assault they "are living apart * * * pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation" (Penal Law, § 130.00, subd 4).

Defendant moved to dismiss the indictment, asserting that because he and Denise were still married at the time of the incident^[1] he came within the "marital exemption" to both rape and sodomy. The People opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart, and they in fact were living apart, and thus were "not [160] married" for purposes of the statutes. The trial court granted the defendant's motion and dismissed the indictment, concluding that the temporary order of protection did not require Mario and Denise to live apart from each other, but instead required only that he remain away from her, and that therefore the "marital exemption" applied.

On appeal by the People, the Appellate Division reversed the trial court, reinstated the indictment, and remanded the case for trial. The Appellate Division held that a Family Court order of protection is within the scope of "[an] order * * * which by its terms or in its effect requires such living apart" even though it is directed only at a husband, and thus found that Mario and Denise were "not married" for purposes of the statute at the time of the incident.

The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division. Defendant asserts on this appeal that the temporary order of protection is not the type of order which enables a court to treat him and Denise as "not married" and that thus he is within the marital exemption. Defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional. Specifically, he contends that both statutes violate equal protection because they burden some, but not all males (all but those within the "marital exemption"), and that the rape statute also violates equal protection for burdening only men, and not women. The lower courts rejected the defendant's constitutional arguments, finding that neither statute violated the equal protection clause in the Fourteenth Amendment. Although we affirm the conviction of the defendant, we do not agree with the constitutional analysis of the lower courts and instead conclude that the marital and gender exemptions must be read out of the statutes prohibiting forcible rape and sodomy.

III

We first address the defendant's argument that, despite the order of protection, he was within the "marital exemption" to rape and sodomy and thus could not be prosecuted for either crime. Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to either a court [161] order "which by its terms or in its effect requires such living apart" or a decree, judgment, or written agreement of separation (L 1978, ch 735; see Penal Law, § 130.00, subd 4). We agree with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations.

The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of "not married", stated: "In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart" (NY Legis Ann, 1978, pp 403-404). Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order "which by its terms or in its effect requires [the spouses to live] apart". This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.^[2]

Accordingly, the defendant was properly found to have been statutorily "not married" to Denise at the time of the rape.

IV

The defendant's constitutional challenges to the rape and sodomy statutes are premised on his being considered "not married" to Denise and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant's claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated (see Tribe, American Constitutional Law, p 997). A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him (see Michael M. v Sonoma County Superior Ct., 450 US 464, 472, n 8, 473; Orr v Orr, 440 US 268, 272-273). This rule of standing applies as well to a defendant in a criminal prosecution who, [162] while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others (see Linda R. S. v Richard D., 410 US 614, 619, n 5; Skinner v Oklahoma, 316 US 535; People v Illardo, 48 N.Y.2d 408, 417; Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 4-8). Thus, defendant's constitutional claims are properly before this court.

A. THE MARITAL EXEMPTION

As noted above, under the Penal Law a married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for rape^[3] (see 1881 Penal Code, tit X, ch II, § 278). Although a marital exemption was not explicit in earlier rape statutes (see 1863 Rev Stats, part 4, ch I, tit 2, art 2, § 22), an 1852 treatise stated that a man could not be guilty of raping his wife (Barbour, Criminal Law of State of New York [2d ed], p 69). The assumption, even before the marital exemption was codified, that a man could not be guilty of raping his wife, is traceable to a statement made by the 17th century English jurist Lord Hale, who wrote: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract" (1 Hale, History of Pleas of the Crown, p 629). Although Hale cited no authority for his statement it was relied on by State Legislatures which enacted rape statutes with a marital exemption and by courts which established a common-law exemption for husbands.^[4]

The first American case to recognize the marital exemption was decided in 1857 by the Supreme Judicial Court of Massachusetts, which stated in dictum that it would always be a defense to rape to show marriage to the victim (Commonwealth v Fogerty, 74 Mass 489). Decisions to the same effect by other [163] courts followed, usually with no rationale or authority cited other than Hale's implied consent view.^[5] In New York, a 1922 decision noted the marital exemption in the Penal Law and stated that it existed "on account of the matrimonial consent which [the wife] has given, and which she cannot retract" (People v Meli, 193 NYS 365, 366 [Sup Ct]).

Presently, over 40 States still retain some form of marital exemption for rape.^[6] While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals (Reed v Reed, 404 US 71, 75-76). Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon "some ground of difference that rationally explains the different treatment" (Eisenstadt v Baird, 405 US 438, 447; People v Onofre, 51 N.Y.2d 476, 491, cert den 451 US 987).

We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the [164] marital exemption for rape in the New York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 21). Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm (see Coker v Georgia, 433 US 584, 597-598; Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, 1527-1528). To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand (see De Angelis v De Angelis, 54 AD2d 1088; "Abolishing The Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 207; "Marital Rape Exemption", supra, at n 5, 52 NYU L Rev, at pp 311-312). Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at pp 19-20; cf. Planned Parenthood v Danforth, 428 US 52). If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in "violent or forceful self-help" (State v Smith, 85 NJ 193, 206).

The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of the husband" (1 Blackstone's Commentaries [1966 ed], p 430; see State v Smith, supra, at pp 204-205; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 309-310). Both these doctrines, of course, have long been rejected in this State. Indeed, "[n]owhere in the common-law world — [or] in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being" (Trammel v United States, 445 US 40, 52).

Because the traditional justifications for the marital exemption no longer have any validity, other arguments have been advanced in its defense. The first of these recent rationales, [165] which is stressed by the People in this case, is that the marital exemption protects against governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus that elimination of the exemption would be disruptive to marriages. While protecting marital privacy and encouraging reconciliation are legitimate State interests, there is no rational relation between allowing a husband to forcibly rape his wife and these interests. The marital exemption simply does not further marital privacy because this right of privacy protects consensual acts, not violent sexual assaults (see Griswold v Connecticut, 381 US 479, 485-486; "Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 23). Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife,^[7] he cannot justifiably rape his wife under the guise of a right to privacy.

Similarly, it is not tenable to argue that elimination of the marital exemption would disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which "disrupts" a marriage (Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, at p 855). Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it is doubtful that there is anything left to reconcile (see Trammel v United States, 445 US 40, 52, supra; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 315). This, of course, is particularly true if the wife is willing to bring criminal charges against her husband which could result in a lengthy jail sentence.

Another rationale sometimes advanced in support of the marital exemption is that marital rape would be a difficult crime to prove. A related argument is that allowing such prosecutions could lead to fabricated complaints by "vindictive" wives. The difficulty of proof argument is based on the problem of showing lack of consent. Proving lack of consent, however, is often the most difficult part of any rape prosecution, particularly where the rapist and the victim had a prior relationship (see "Spousal Exemption to Rape", supra, at n 4, 65 Marq L Rev, at p 125; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314). Similarly, the possibility that married women will fabricate complaints would seem to be no greater than the possibility of unmarried women doing so ("Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314; "Equal Protection Considerations", [166] supra, n 6, 16 N Eng L Rev, at p 24).^[8] The criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than homicides would go unpunished.

The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. The fact that rape statutes exist, however, is a recognition that the harm caused by a forcible rape is different, and more severe, than the harm caused by an ordinary assault (see "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 316; "Abolishing the Marital Exemption", supra, n 4, 1983 U of Ill L Rev, at p 208). "Short of homicide, [rape] is the `ultimate violation of self'" (Coker v Georgia, 433 US 584, 597 [citation omitted], supra). Under the Penal Law, assault is generally a misdemeanor unless either the victim suffers "serious physical injury" or a deadly weapon or dangerous instrument is used (Penal Law, §§ 120.00, 120.05, 120.10). Thus, if the defendant had been living with Denise at the time he forcibly raped and sodomized her he probably could not have been charged with a felony, let alone a felony with punishment equal to that for rape in the first degree.^[9]

Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape (see, generally, Russell, Rape In Marriage, pp 190-199; "Rape Prosecution", supra, at n 6, [167] 7 Vt L Rev, at pp 45-46; "Abolishing the Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 209).

Among the recent decisions in this country addressing the marital exemption, only one court has concluded that there is a rational basis for it (see People v Brown, 632 P2d 1025 [Col]).^[10] We agree with the other courts which have analyzed the exemption, which have been unable to find any present justification for it (see People v De Stefano, 121 Misc 2d 113; Commonwealth v Chretien, 383 Mass 123; State v Smith, 85 NJ 193, supra; Weishaupt v Commonwealth, 227 Va 389, supra; State v Rider, 449 So 2d 903 [Fla App]; State v Smith, 401 So 2d 1126 [Fla App]). Justice Holmes wrote: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past" (Holmes, The Path of the Law, 10 Harv L Rev 457, 469). This statement is an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates the equal protection clauses of both the Federal and State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § 11).

B. THE EXEMPTION FOR FEMALES

Under the Penal Law only males can be convicted of rape in the first degree.^[11] Insofar as the rape statute applies to acts of "sexual intercourse", which, as defined in the Penal Law (see Penal Law, § 130.00) can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females.^[12] The equal protection issue, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.

Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions [168] was to protect the chastity of women and thus their property value to their fathers or husbands (see State v Smith, 85 NJ, at p 204, supra; 2 Burdick, Law of Crime, pp 218-225; Comment, Rape Laws, Equal Protection, and Privacy Rights, 54 Tulane L Rev 456, 457 [hereafter cited as "Rape Laws"]). New York's rape statute has always protected only females, and has thus applied only to males (see Penal Law, § 130.35; 1909 Penal Law, § 2010; 1881 Penal Code, tit X, ch II, § 278). Presently New York is one of only 10 jurisdictions that does not have a gender-neutral statute for forcible rape.^[13]

A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective (Caban v Mohammed, 441 US 380, 388; Craig v Boren, 429 US 190, 197; People v Whidden, 51 N.Y.2d 457, 460, app dsmd 454 US 803). This test applies whether the statute discriminates against males or against females (Caban v Mohammed, 441 US, at p 394, supra; Orr v Orr, 440 US 268, 279, supra; People v Whidden, supra). The People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective (Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Caban v Mohammed, 441 US, at p 393, supra). This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.

The first argument advanced by the People in support of the exemption for females is that because only females can become pregnant the State may constitutionally differentiate between forcible rapes of females and forcible rapes of males. This court and the United States Supreme Court have upheld statutes which subject males to criminal liability for engaging in sexual intercourse with underage females without the converse being true (People v Whidden, supra; Michael M. v Sonoma County Superior Ct., 450 US 464, supra). The rationale behind these decisions was that the primary purpose of such "statutory rape" laws is to protect against the harm caused by teenage pregnancies, there being no need to provide the same protection to young males (see Michael M. v Sonoma County Superior Ct., 450 US, at pp 470-473, supra; People v Whidden, 51 NY2d, at p 461, supra).

[169] There is no evidence, however, that preventing pregnancies is a primary purpose of the statute prohibiting forcible rape, nor does such a purpose seem likely (see "Rape Laws", op. cit., 54 Tulane L Rev, at p 467). Rather, the very fact that the statute proscribes "forcible compulsion" shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body (cf. Ballard v United States, 430 A2d 483 [DC App]; "Rape Laws", op. cit., at p 468).^[14] Thus, due to the different purposes behind forcible rape laws and "statutory" (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant.

The People also claim that the discrimination is justified because a female rape victim "faces the probability of medical, sociological, and psychological problems unique to her gender". This same argument, when advanced in support of the discrimination in the statutory rape laws, was rejected by this court in People v Whidden (51 NY2d, at p 461, supra), and it is no more convincing in the present case. "[A]n `"archaic and overbroad" generalization' * * * which is evidently grounded in long-standing stereotypical notions of the differences between the sexes, simply cannot serve as a legitimate rationale for a penal provision that is addressed only to adult males" (id., quoting Craig v Boren, 429 US, at p 198, supra; cf. Orr v Orr, 440 US, at p 283, supra; Tribe, Constitutional Law, p 1066).

Finally, the People suggest that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare. Although the "physiologically impossible" argument has been accepted by several courts (see People v Reilly, 85 Misc 2d 702, 706-707; Brooks v State, 24 Md App 334; Finley v State, 527 SW2d 553 [Tex Crim App]), it is simply wrong. The argument is premised on the notion that a man cannot engage in sexual intercourse unless he is sexually aroused, and if he is aroused then he is consenting to intercourse. "Sexual intercourse" however, "occurs upon any penetration, however slight" (Penal Law, § 130.00); this degree of contact can be achieved without a male being aroused and thus without his consent.

As to the "infrequency" argument, while forcible sexual assaults by females upon males are undoubtedly less common than [170] those by males upon females this numerical disparity cannot by itself make the gender discrimination constitutional. Women may well be responsible for a far lower number of all serious crimes than are men, but such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery (cf. Craig v Boren, 429 US, at pp 200-204, supra).

To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an "`exceedingly persuasive justification'" for the classification (Mississippi Univ. for Women v Hogan, 458 US 718, 724; Kirchberg v Feenstra, 450 US 455, 461), which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law (Orr v Orr, 440 US, at pp 281-282, supra; "Rape Laws", op. cit., 54 Tulane L Rev, at p 468; cf. Michael M. v Sonoma County Superior Ct., 450 US, at p 464, supra). The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons "benefitted" by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, "[a] gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny" (Orr v Orr, 440 US, at pp 282-283, supra).

Accordingly, we find that section 130.35 of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.

V

Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded (Califano v Westcott, 443 US 76, 89; Welsh v United States, 398 US 333, 361 [Harlan, J., concurring]; Matter of Burrows v Board of Assessors, 64 N.Y.2d 33; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136). Accordingly, the unconstitutionality of [171] one part of a criminal statute does not necessarily render the entire statute void (see United States v Jackson, 390 US 570, 585; People v Mancuso, 255 N.Y. 463, 473).

This court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness (Matter of Westinghouse Elec. Corp. v Tully, 63 N.Y.2d 191). As Judge Cardozo wrote over 50 years ago, "`The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether'" (People v Mancuso, 255 N.Y. 463, 474, supra; cf. United States v Jackson, 390 US 570, 585, supra ["`(u)nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law'"]). These principles of severance apply as well where elimination of an invalid exemption will impose burdens on those not formerly burdened by the statute (see Orr v Orr, 440 US 268, 271-272, 283-284, supra; Goodell v Goodell, 77 AD2d 684; Childs v Childs, 69 AD2d 406), and where the exemption is part of a criminal statute (see Skinner v Oklahoma, 316 US 535, 543, supra; State v Books, 225 NW2d 322, 325 [Iowa]; cf. Welsh v United States, 398 US, at p 361 [Harlan, J., concurring], supra).

The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute (Califano v Westcott, 443 US, at p 90, supra; Welsh v United States, 398 US, at pp 365, 366 [Harlan, J., concurring], supra; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136-1137). Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today (see, generally, Coker v Georgia, 433 US 584, supra; 1 Callaghan's Criminal Law in New York [Groble, 3d ed], § 19:01). Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate [172] the exemptions and thereby preserve the statutes. Accordingly we choose the remedy of striking the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree. Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed.

Though our decision does not "create a crime", it does, of course, enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have (cf. Goodell v Goodell, 77 AD2d, at p 685, supra). Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.^[15] The decision most similar factually to the present one comes from the Alaska Supreme Court in Plas v State (598 P2d 966). That court addressed an equal protection challenge by a female prostitute to a statute which criminalized prostitution, and defined it as a female offering her body for sexual intercourse for hire. The court agreed with the defendant that the statute violated equal protection because it covered only females, but chose to remedy this underinclusion by striking the definition, thereby expanding the statute to cover any person who engaged in prostitution, and affirmed her conviction.^[16]

The defendant cannot claim that our decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the [173] Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State (see Bouie v City of Columbia, 378 US 347). Defendant did not come within any of the exemptions which we have stricken, and thus his conduct was covered by the statutes as they existed at the time of his attack on Denise.

Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (US Const, 14th Amdt), and the prohibition against ex post facto laws (US Const, art I, § 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision.

To reverse the defendant's conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. Indeed if we were to reverse no person arrested for forcible rape or sodomy prior to the date of this decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have the conviction vacated. As the equal protection clause does not require us to reach such a result, we decline to do so.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The defendant and Denise were divorced several months after the assault in the motel room.

[2] The other prerequisite for finding a husband and wife to be "not married" based on an order of protection is that they were in fact living apart at the time of the incident. This is a question of fact which was resolved against the defendant by the jury and will not be disturbed by this court.

[3] Although the discussion of the marital exemption will focus on rape, the constitutional analysis is applicable to sodomy as well.

[4] The influence of Hale's statement, despite its failure to cite any authority has been discussed by several courts and commentators (see State v Smith, 85 NJ 193, 199; Commonwealth v Chretien, 383 Mass 123, 124, n 1; State v Rider, 449 So 2d 903, 904 [Fla App]; Note, Abolishing The Marital Exemption For Rape: A Statutory Proposal, 1983 U of Ill L Rev 201, 202 [hereafter cited as "Abolishing the Marital Exemption"]; Note, Spousal Exemption To Rape, 65 Marq L Rev 120, 121 [hereafter cited as "Spousal Exemption"]). Interestingly, Hale's statement has not been fully accepted in England (see Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, 850-852).

[5] See, generally, State v Smith, 85 NJ, at p 200; "Spousal Exemption", supra, at n 4, at pp 129-130; Note, Marital Rape Exemption, 52 NYU L Rev 306, 309 (hereafter cited as "Marital Rape Exemption").

[6] Statutes in nine States provide a complete exemption to rape as long as there is a valid marriage (Alabama, Arkansas, Kansas, Montana, South Dakota, Texas, Vermont, Washington, West Virginia). In 26 other States, statutes provide for a marital exemption but with certain exceptions, most typically where the spouses are living apart pursuant to either a court order or a separation agreement (Alaska, Arizona, Colorado, Idaho, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Wyoming, Wisconsin). In three other States (Georgia, Mississippi, Nebraska) and the District of Columbia the exemption appears to still exist as a common-law doctrine, and it may still have a limited application in Virginia (see Weishaupt v Commonwealth, 227 Va 389). Finally, in Connecticut, Delaware, Hawaii, and Iowa, there is a marital exemption for some, but not all degrees of forcible rape (see, generally, for statutory references, Schwartz, Spousal Exemption for Criminal Rape Prosecution, 7 Vt L Rev 33, 38-41 [hereafter cited as "Rape Prosecution"]; Note, Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 2-3, n 4 [hereafter cited as "Equal Protection Considerations"]; "Abolishing the Marital Exemption", supra, at n 4, at pp 203-205).

[7] A wife may sue her husband for torts he commits against her, including assault and battery (General Obligations Law, § 3-313).

[8] The stigma and other difficulties associated with a woman reporting a rape and pressing charges probably deter most attempts to fabricate an incident; rape remains a grossly under-reported crime (see Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, n 7; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 314-315; "Spousal Exemption", supra, n 4, 65 Marq L Rev, at p 126).

[9] Rape in the first degree and sodomy in the first degree are "Class B violent felony offenses", the minimum sentence for which is a jail term of 2-6 years, and the maximum sentence for which is a jail term of 8 1/3-25 years (Penal Law, § 70.02). The defendant possibly could have been charged with coercion in the first degree, a class D felony (Penal Law, § 135.65), but not all forcible rapes meet all the elements of the coercion statute (see People v Greer, 42 N.Y.2d 170, 174-175), and thus if a husband cannot be prosecuted under the rape statute when he forcibly rapes his wife he may be able to escape prosecution for any felony.

[10] The Colorado Supreme Court, relying on a 1954 Law Review comment, stated that the marital exemption "may remove a substantial obstacle to the resumption of normal marital relations" and "averts difficult emotional issues and problems of proof inherent in this sensitive area" (632 P2d, at p 1027). We have considered, and rejected, both of these arguments.

[11] The sodomy statute applies to any "person" and is thus gender neutral. Defendant's gender-based equal protection challenge is therefore addressed only to the rape statute.

[12] A female can, however, be convicted under the present statute as an accomplice to a forcible rape of a female (Penal Law, §§ 20.00, 20.05, subd 3; People v Evans, 58 AD2d 919).

[13] The other nine jurisdictions are Alabama, Delaware, District of Columbia, Georgia, Idaho, Kansas, Mississippi, Oregon, and Virginia. Some of these other States, like New York (see Penal Law, § 130.65), have other statutes which proscribe conduct including the forcible rape of a male by a female and which have less severe punishments than for forcible rape of a female by a male.

[14] In at least two States there is a specific statute which states that "[t]he essential guilt of rape consists in the outrage to the person and feelings of the female" (Okla Stats Ann, tit 21, § 1113; Idaho Code Ann, § 18-6103).

[15] See Plas v State, 598 P2d 966 (Alaska); People v Henry, 131 Cal App 82; State v Books, 225 NW2d 322 (Iowa); City of Duluth v Sarette, 283 NW2d 533 (Minn); Tom & Jerry v Nebraska Liq. Control Comm., 183 Neb 410; State v Fowler, 193 NC 290; State v McLeary, 65 NC App 174, affd 311 NC 397; State v Burgun, 49 Ohio App 2d 112; State v Watkins, 259 SC 285, vacated on other grounds 413 US 905; Matter of Tullos, 541 SW2d 167 (Tex Crim App).

[16] We note also that in the decision previously discussed which found a rational basis for the marital exemption, People v Brown (632 P2d 1025 [Col]), the court stated that if it did find that the exemption was unconstitutional it would strike just the exemption and leave intact the sexual assault statute which would then cover all persons (id., at p 1027).

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).

280 Kan. 275 (2005)

James D. Esseks, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of New York, New York, argued the cause, and Tamara Lange, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of San Francisco, California, and Paige A. Nichols, of Lawrence, were with him on the briefs for appellant.

Jared S. Maag, deputy attorney general, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.

Jeffrey E. Goering, of Thompson, Stout & Goering, LLC, of Wichita, and Matthew D. Staver, of Liberty Counsel, of Longwood, Florida, were on the brief for amicus curiae Kansas Legislators.

Timothy M. O'Brien and Chelsi K. Hayden, of Shook, Hardy & Bacon, L.L.P., of Overland Park, and Julie M. Carpenter and Nicole G. Berner, of Jenner & Block, LLC of Washington, D.C., were on the brief for amicus curiae DKT Liberty Project.

Eric D. Barton, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, and Hayley Gorenberg, of Lambda Legal, of New York, New York, were on the brief for amici curiae Kansas Public Health Association, American Public Health Association, American Academy of HIV Medicine, American Foundation for AIDS Research, HIV Medicine Association, International Association of Physicians in AIDS Care, National Alliance of State and Territorial AIDS Directors, and National Minority AIDS Council.

Melanie S. Morgan, of Kansas City, and Ruth N. Borenstein, Leecia Welch, and Sylvia M. Sokol, of Morrison & Foerster, LLP, of San Francisco, California, were [276] on the brief for amici curiae National Association of Social Workers and Kansas Chapter of the National Association of Social Workers.

The opinion was delivered by

LUCKERT, J.:

The principal issue presented in this case is whether the Kansas unlawful voluntary sexual relations statute, K.S.A. 2004 Supp. 21-3522, violates the equal protection provision of the Fourteenth Amendment to the United States Constitution. Matthew Limon argues that the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), requires this court to find the statute unconstitutional because it results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex.

The statute subject to this challenge, commonly referred to as the Romeo and Juliet statute, applies to voluntary sexual intercourse, sodomy, or lewd touching when, at the time of the incident, (1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex. K.S.A. 2004 Supp. 21-3522. Limon's conduct meets all of the elements of the Romeo and Juliet statute except the one limiting application to acts between members of the opposite sex.

When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when general rape, sodomy, and lewd touching statutes apply. Because these disparities are based upon the homosexual nature of Limon's conduct, he argues the Romeo and Juliet statute creates a classification which violates the equal protection principles announced by the United States Supreme Court. Limon suggests we apply a strict level of scrutiny when reviewing his claim, but asserts that even if the rational basis test applies, under the guidance of Lawrence, the classification bears no rational relationship to legitimate State interests.

[277] We agree that the United States Supreme Court's decision in Lawrence controls our analysis and, when considered in conjunction with several equal protection decisions of the United States Supreme Court, requires us to hold that the State does not have a rational basis for the statutory classification created in the Romeo and Juliet statute.

Because we reach this conclusion, we will not reach Limon's other constitutional attacks upon his conviction. However, we will discuss his argument that his sentence violates the principles enunciated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

Factual and Procedural Background

Limon was convicted of criminal sodomy pursuant to K.S.A. 21-3505(a)(2) after a bench trial on stipulated facts. The stipulation established that on February 16, 2000, Limon had consensual oral contact with the genitalia of M.A.R. Both Limon and M.A.R. are male. Limon turned 18 years of age just 1 week before the incident; his date of birth is February 9, 1982. He was less than 4 years older than M.A.R., who turned 15 years of age the month following the incident. M.A.R.'s date of birth is March 17, 1985.

After his conviction, Limon filed a motion for a downward durational departure from the presumptive sentence under the Kansas sentencing guidelines. He also renewed his argument that his equal protection rights had been violated by the conviction. These motions were argued and evidence was presented at the sentencing hearing.

The contact occurred at a school for developmentally disabled children where Limon and M.A.R. were residents. Although there is a discrepancy between Limon's and M.A.R.'s functioning, the difference is minor. Intellectually, Limon falls between the ranges described as borderline intellectual functioning and mild mental retardation. M.A.R. functions in the upper limits of the range of mild mental retardation. M.A.R. consented to the sexual contact, and when he asked Limon to stop, Limon did so.

The trial court rejected Limon's equal protection argument and denied the motion for downward durational departure. The trial [278] court found that Limon's criminal history category was B because of two prior juvenile adjudications for aggravated criminal sodomy. Limon was sentenced to 206 months' imprisonment, which was the mitigated term under the Kansas sentencing guidelines for a severity level 3 crime where the defendant has a criminal history falling in category B. As a consequence of Limon's conviction, he is subject to 60 months' of postrelease supervision and is required to register as a persistent sexual offender. K.S.A. 22-4902 et seq. By contrast, had Limon been convicted of sodomy under the unlawful sexual relations statute, the presumptive sentence at the time of the offense (and now) would have been only 13, 14, or 15 months' imprisonment. K.S.A. 1999 Supp. 21-4704. Moreover, those sentenced under the unlawful sexual relations statute are not subject to the provisions regarding sentencing of persistent sexual offenders (K.S.A. 2004 Supp. 21-4704[j] and K.S.A. 2004 Supp. 22-3717[d][2]) or required to register as a sex offender (K.S.A. 22-4902).

Limon appealed, and the Court of Appeals affirmed his conviction and sentence in State v. Limon, No. 85,898, unpublished opinion filed February 1, 2002, rev. denied 274 Kan. 1116 (2002) (Limon I). The Court of Appeals' decision was based primarily upon Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003).

Limon sought this court's review of the Court of Appeals' decision; his petition was denied. Limon then filed a petition for writ of certiorari to the United States Supreme Court. While his petition was pending, the Supreme Court issued its decision in Lawrence v. Texas, which involved two adult men who engaged in private, consensual anal sex; they were charged and convicted under a Texas statute which prohibited "deviate sexual intercourse" between persons of the same sex.

In an opinion authored by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court held that the Texas statute violated the Due Process Clause. In doing so, the Court focused upon Bowers, the decision upon which the Kansas Court of Appeals had relied in the instant case. In Bowers, the [279] United States Supreme Court sustained a Georgia criminal sodomy statute against a claim the provision violated the Due Process Clause. In a turnabout of the holding in Bowers, the Lawrence Court concluded: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." 539 U.S. at 578.

The Lawrence Court recognized a liberty interest and considered whether the State's infringement of that interest was justified by a legitimate State interest:

"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. `It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' [Citation omitted.] The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578.

Justice O'Connor concurred, finding the Texas statute unconstitutional. However, she did not join in the majority's analysis that the statute violated the Due Process Clause. She would have found the statute unconstitutional as a violation of equal protection. She concluded her analysis by stating: "A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review." 539 U.S. at 585 (O'Connor, concurring).

Justice Scalia wrote a dissenting opinion which Chief Justice Rehnquist and Justice Thomas joined. For our purposes, the dissent is instructive because of its discussion of what the majority opinion does or does not do. Especially significant to our review is Justice Scalia's conclusion that the majority opinion means that "the promotion of majoritarian sexual morality is not even a legitimate state interest" and that criminal legislation on matters such as "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" [280] cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).

One day after issuing this decision, the Supreme Court granted Limon's petition, vacated the judgment, and remanded the case to the Kansas Court of Appeals "for further consideration in light of Lawrence v. Texas." Limon v. Kansas, 539 U.S. 955, 156 L. Ed. 2d 652, 123 S. Ct. 2638 (2003).

The decision upon remand was fractured; each judge on the three judge panel of the Court of Appeals filed a separate opinion. Although stating a different rationale, two judges agreed that Limon's conviction and sentence should once again be affirmed. The Court of Appeals majority opinion, authored by Judge Green, dismissed the application of Lawrence, concluding it "is factually and legally distinguishable from the present case." State v. Limon, 32 Kan. App. 2d 369, 373, 83 P.3d 229 (2004). The Court of Appeals majority focused upon Justice Kennedy's explanation that "[t]he present case does not involve minors." 32 Kan. App. 2d at 373-74 (quoting Lawrence, 539 U.S. at 578). Rather, Lawrence involved "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." 539 U.S. at 578. Additionally, the Court of Appeals majority distinguished the legal analysis, noting that the Lawrence majority declined to apply an equal protection analysis and instead determined the Texas statute violated the Due Process Clause. In contrast, Limon does not assert a due process challenge.

Judge Green applied the lowest level of scrutiny, the rational basis test, when analyzing Limon's equal protection claim and found that the legislature "could have rationally determined that heterosexual sodomy between a child and an adult could be put in a class by itself and could be dealt with differently than homosexual sodomy between a child and an adult." 32 Kan. App. 2d at 375. Judge Green identified four interests which he believed provided a rational basis for the classification:

(1) Protection of Children. "[T]he legislature could well have concluded that homosexual sodomy between children and young adults could disturb the traditional sexual development of children.. . . K.S.A. [2004 Supp.] 21-3522 is designed to discourage [281] voluntary sexual behavior between young adults and children which deviates from traditional sexual mores." 32 Kan. App. 2d at 377. The classification which gives a more lenient sentence to members of the opposite sex is proper "because it is rationally related to the purpose of protecting and preserving the traditional sexual mores of society and the historical sexual development of children." 32 Kan. App. 2d at 377.

(2) Marriage and Procreation. Judge Green concluded the government has a legitimate interest in protecting marriage and procreation because the survival of society requires replenishment of its members. Since sexual acts between same-sex couples do not lead to procreation, he reasoned that the classification contained in K.S.A. 2004 Supp. 21-3522 advances the government's interest in protecting and advancing the family as the commonly recognized unit for procreation. 32 Kan. App. 2d at 378.

(3) Parental Responsibility. Judge Green also observed that the legislature might have determined that lengthy incarceration of a young adult offender who has become a parent as a result of a heterosexual relationship with a minor would be counterproductive to that young adult's duty to support his or her child. Because same-sex relationships do not generally lead to unplanned pregnancies, the need to release a same-sex offender from incarceration is absent. Thus, Judge Green concluded, K.S.A. 2004 Supp. 21-3522 advances the government's interest in getting a young adult parent involved in providing financial support for the child. 32 Kan. App. 2d at 378-79.

(4) Prevention of Sexually Transmitted Disease. Finally, Judge Green concluded that the legislature could have considered the fact "that certain health risks are more generally associated with homosexual activity than with heterosexual activity," thus K.S.A. 2004 Supp. 21-3522 is rationally related to the government's legitimate interest in protecting public health. 32 Kan. App. 2d at 379.

Judge Green also rejected Limon's claims that K.S.A. 2004 Supp. 21-3522 impermissibly discriminates on the basis of gender and that his conviction and sentence violated the Eighth Amendment prohibition against cruel and unusual punishment because his sentence [282] was disproportionate to the crime of criminal sodomy. 32 Kan. App. 2d at 380-81.

In his concurring opinion, Judge Malone agreed that K.S.A. 2004 Supp. 21-3522 does not discriminate on the basis of gender. He also agreed that Lawrence was both factually and legally distinguishable because it involved adults and was decided on due process rather than equal protection grounds. 32 Kan. App. 2d at 386. Judge Malone agreed with Judge Green's analysis that the Romeo and Juliet law should be evaluated under the rational basis test and stated:

"I cannot embrace every rational basis suggested in the majority opinion for upholding the constitutionality of K.S.A. [2004] Supp. 21-3522, and in fact I disagree with many of the positions advanced in the majority opinion. However, if the only rational basis justifying the statute is the legislature's intention to protect children from increased health risks associated with homosexual activity until they are old enough to be more certain of their choice, it is within the legislature's prerogative to make that determination. This rationale, although tenuous in some respects, provides a `reasonably conceivable state of facts' sufficient to justify the statutory classification." 32 Kan. App. 2d at 388.

Judge Pierron dissented. Although he, too, applied the rational basis test in determining whether K.S.A. 2004 Supp. 21-3522 was constitutional, he emphasized that "[l]egislative disapproval of homosexuality alone is not enough to justify any measures the legislature might choose to express its disapproval. Under the rational basis test, there must be a showing that the measures adopted have a rational relationship to a legitimate legislative concern." 32 Kan. App. 2d at 396. Reviewing each of the reasons offered by the State to justify the discriminatory sentencing provision, Judge Pierron determined that none of them bore any rational relationship to the statute's classification. 32 Kan. App. 2d at 396-400. He concluded: "The purpose of the law is not to accomplish any of the stated aims other than to punish homosexuals more severely than heterosexuals for doing the same admittedly criminal acts." 32 Kan. App. 2d at 400. Judge Pierron would hold that the classification violates the Due Process Clause of the Fifth and Fourteenth Amendments and would strike the unconstitutional classification from the statute. 32 Kan. App. 2d at 400.

[283] Limon filed a petition for review which this court granted.

Analysis

In this appeal, Limon primarily argues that to punish criminal voluntary sexual conduct between teenagers of the same sex more harshly than criminal voluntary sexual conduct between teenagers of the opposite sex is a violation of the equal protection provision of the United States Constitution.

"Whether a statute violates equal protection is a question of law over which this court has unlimited review." State v. Mueller, 271 Kan. 897, 902, 27 P.3d 884 (2001).

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution demands that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." The guiding principle of the Equal Protection Clause is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Chiles v. State, 254 Kan. 888, 895, 869 P.2d 707, cert. denied 513 U.S. 850 (1994).

Limon's arguments are constructed entirely upon the precedent of United States Supreme Court cases, and those precedents command our decision in this case. However, Limon also cites § 1 of the Kansas Constitution Bill of Rights and, thus, preserves a state constitutional claim.

Sections 1 and 2 of the Kansas Constitution Bill of Rights "are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law." Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987). Section 1 applies in cases such as this one when an equal protection challenge involves individual rights. 241 Kan. at 667.

Traditionally, when analyzing an equal protection claim, the United States and Kansas Supreme Courts employ three levels of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis test. Chiles, 254 Kan. at 891-92. The level of scrutiny applied by the court depends on the nature of the legislative classification and the rights affected by that classification. Romer v. Evans, 517 U.S. 620, 632, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). The [284] general rule is that a law will be subject to the rational basis test unless the legislative classification targets a suspect class or burdens a fundamental right. 517 U.S. at 631. In Farley, this court stated:

"When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving `suspect classifications' or `fundamental interests' is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification." 241 Kan. at 667.

Thus, when an equal protection claim is made, the first step of the analysis is to determine the nature of the legislative classification and the rights which are affected by the classification. That determination will dictate the level of scrutiny which applies. The final step of the analysis requires determining whether the classification withstands the scrutiny.

Classification

In the first step, we must examine the nature of the classification created by the Romeo and Juliet statute. The State argues that the statute applies only to conduct and does not discriminate against any class of individual, in particular against homosexual persons. The State also argues that nothing in the record establishes that either Limon or M.A.R. is homosexual.

Indeed, there is no per se classification of homosexuals, bisexuals, or heterosexuals in the statute, nor do we know which classification applies to Limon or M.A.R. However, that does not mean that Limon's argument fails. As Justice Scalia noted in his dissent in Romer, "there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." (Emphasis added.) 517 U.S. at 641. The majority in Lawrence similarly noted that making homosexual conduct criminal and not legislating against "deviate sexual intercourse" committed by persons of different sexes "in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." 539 U.S. at 575. Throughout the Lawrence opinion, the majority refers to the stigmatizing and demeaning effect of criminalizing conduct commonly engaged in by [285] homosexuals and concludes that a state may not "demean their existence or control their destiny." 539 U.S. at 578. Additionally, Lawrence makes it clear that Romer applies to "persons who were homosexuals, lesbians, or bisexual either by `orientation, conduct, practices or relationships.'" Lawrence, 539 U.S. at 574 (quoting Romer, 517 U.S. at 624).

This case is different from Lawrence, where homosexual conduct was criminal and heterosexual conduct was not. The Lawrence Court focused upon the "stigma" the criminal statute imposed which it characterized as "not trivial." 539 U.S. at 575. Here, both types of conduct are criminalized and, thus, stigma attaches to the heterosexual conduct covered by the Romeo and Juliet statute. However, there is an enormous escalation in the severity of punishment for those punished under the general rape, sodomy, and lewd act statutes. The Kansas Sentencing Guidelines impose a presumptive sentence of prison upon all defendants, including those with no prior criminal history, who are convicted of a severity level 3 felony, the severity level applying to Limon's conviction. In contrast, a presumption of probation applies to all sentences, except those for defendants with criminal histories of "A" or "B," who are sentenced for a severity level 9 crime, which would be the applicable severity level for sodomy if the Romeo and Juliet statute applied.

Additionally, the presumptive terms of imprisonment for a severity level 3 felony, as noted earlier, are approximately 15 times that of a severity level 9 felony. As also discussed earlier, for Limon, whose criminal history score was a B, this classification means the difference between a 13-, 14-, or 15-month prison sentence and a 206-month prison sentence. K.S.A. 2004 Supp. 21-4704. For a defendant with no criminal history, a conviction of criminal sodomy (as charged in this case) entails a sentencing range of 55-59-61 months' presumptive imprisonment while a conviction of unlawful voluntary sexual relations under the Romeo and Juliet statute entails a sentencing range of 5-6-7 months with the presumption of probation. K.S.A. 2004 Supp. 21-4704. This represents an extreme disparity in sentencing.

[286] There is also the distinction that Limon faces the stigma of sex offender registration; those convicted under the Romeo and Juliet statute do not. K.S.A. 22-4902.

Furthermore, the demeaning and stigmatizing effect upon which the Lawrence Court focused is at least equally applicable to teenagers, both the victim and the offender, as it is to adults and, according to some, the impact is greater upon a teen.

Based upon these considerations we conclude there is a discriminatory classification requiring us to examine the level of scrutiny to be applied in testing the constitutionality of the classification.

Level of Scrutiny

The next step of our analysis is to determine the appropriate level of scrutiny to apply. Limon argues that under the holding in Lawrence the highest level of scrutiny should apply because the statute creates a classification of homosexuals which the Lawrence Court recognized as suspect. Contrary to this argument, the United States Supreme Court has not recognized homosexuals as a suspect classification. In addition, as Justice Scalia notes in his dissenting opinion in Lawrence, "Though there is discussion of `fundamental proposition[s]' and `fundamental decisions,' nowhere does the Court's opinion declare that homosexual sodomy is a `fundamental right.'" 539 U.S. at 586 (Scalia, J., dissenting). See Lofton v. Secretary of Dept. of Children & Family, 358 F.3d 804, 817 (11th Cir. 2004) (concluding it would be "a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right"); Standhardt v. Superior Court ex rel. County of Maricopa, 206 Ariz. 276, 77 P.3d 451 (2003), rev. denied May 26, 2004 (no fundamental right to same-sex marriage where Lawrence did not recognize fundamental right to engage in same-sex sexual conduct). Thus, strict scrutiny does not apply to our analysis of whether the Romeo and Juliet provision unconstitutionally discriminates based upon sexual orientation.

Justice O'Connor, in her concurring opinion in Lawrence, suggests "a more searching form of rational basis review" applies when a law exhibits a "desire to harm a politically unpopular group." 539 U.S. at 580 (O'Connor, J., concurring). Her suggestion was not [287] discussed by the Lawrence majority, which did not analyze the Texas statute on equal protection grounds. The majority did note that the "alternative" argument that the Texas statute was invalid under the Equal Protection Clause

"is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." 539 U.S. at 574-75.

Despite not deciding the case on equal protection grounds and never explicitly identifying the standard utilized for its due process analysis, the Lawrence majority, by approvingly citing and discussing the equal protection analysis in Romer, at least implied that the rational basis test is the appropriate standard when a statute is attacked because of its classification of homosexual conduct. In Romer, the Court considered whether "Amendment 2" to the Colorado Constitution, which prohibited government protection of the status "homosexual, lesbian, bisexual orientation, conduct, practices or relationships," violated the Equal Protection Clause. In Lawrence, the Court summarized the Romer decision, noting that the amendment named a "solitary class . . . and deprived them of protection under state antidiscrimination laws. We concluded that the provision was `born of animosity toward the class of persons affected' and further that it had no rational relation to a legitimate governmental purpose." 539 U.S. at 574.

The Lawrence opinion contains another oblique indication that the rational basis test would apply, stating: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578. (Emphasis added.) Typically, a search for a legitimate interest signifies a rational basis analysis.

Hence, we apply the rational basis test to determine whether the Romeo and Juliet statute is unconstitutional because of its exclusion of homosexual conduct.

Rational Basis Test

The Court of Appeals applied the rational basis test and upheld the statute upon finding minimal congruence between the classifying [288] means and the one legislative end upon which the two judges who comprised the majority could agree: public health.

As the Court of Appeals noted, the basic contours of the rational basis test are well-defined: "For a statute to pass constitutional muster under the rational basis standard, it therefore must meet a two-part test: (1) It must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals." Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 198, 62 P.3d 236 (2003).

In explaining the test, the United States Supreme Court has said that, although the rational basis test is "the most deferential of standards, we insist on knowing the relation between the classification adopted and the object obtained." Romer, 517 U.S. at 632. The Court observed that the "search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature. . . ; and it marks the limits of our own authority." 517 U.S. at 632. The Court continued: "By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. . . . `If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.'" 517 U.S. at 633 (quoting U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181, 66 L. Ed. 2d 368, 101 S. Ct. 453 [1980]) (Stevens, J., concurring).

Romer and other United States Supreme Court decisions instruct that we must examine the scope of the classification. Over-inclusiveness, where the legislation burdens a wider range of individuals than necessary given the State's interest, may be particularly invidious and unconstitutional. Romer, 517 U.S. at 632. Likewise, a failure to create a classification which is sufficiently broad to effectively accommodate the State's interest, i.e., the creation of an under-inclusive class, may evidence an animus toward those burdened. Cleburne, 473 U.S. at 450. Paradoxically, a class may be both under-and over-inclusive; Limon argues the Romeo and Juliet statute creates such a class.

[289] Justice O'Connor, in her concurring opinion in Lawrence, cites and synthesizes four cases which illustrate these points:

"In Department of Agriculture v. Moreno, [413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973),] for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U.S. at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. [413 U.S. at 535-38]. In Eisenstadt v. Baird, 405 U.S. 438, 447-455, [31 L. Ed. 2d 349], 92 S. Ct. 1029 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences — like fraternity houses and apartment buildings — did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that `impos[ed] a broad and undifferentiated disability on a single named group' — specifically, homosexuals. 517 U.S. at 632." Lawrence, 539 U.S. at 580 (O'Connor, J., concurring).

Of the four cases Justice O'Connor discusses, two are particularly analogous to this case. As Justice O'Connor indicated, in Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), the Court invalidated on rational basis grounds a Massachusetts statute banning the distribution of contraceptives to unmarried persons. The state's highest court had found the legislative purpose to be "the State's interest in protecting the health of its citizens" by "preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences" and "to protect morals" by discouraging premarital sexual intercourse. 405 U.S. at 442. Addressing the purpose of preventing premarital sex, the Supreme Court concluded: "`The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons . . . , unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of contraception.'" 405 U.S. at 448-49 (quoting Griswold v. Connecticut, 381 U.S. 479, 498, 14 L. Ed. 2d 510, 85 S. Ct. 1678 [1965] [Goldberg, J., concurring]). The Court concluded that "the Massachusetts statute [290] is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim." 405 U.S. at 449.

The Eisenstadt Court also explained, if the State genuinely considered contraceptives to pose a health risk, it would have banned their use by both married and unmarried persons. Protecting only single persons from the alleged dangers of contraceptives, and even then only when used to prevent pregnancy rather than the spread of disease, was "both discriminatory and overbroad" and "illogical to the point of irrationality." Eisenstadt, 405 U.S. at 450-51.

In the other case cited by Justice O'Connor which is particularly analogous, Romer, the Court was reviewing the Colorado constitutional amendment which the State argued protected the associational rights of landlords and employers with moral objections to homosexuality and furthered the State's interest in "conserving resources to fight discrimination against other groups." Romer, 517 U.S. at 635. The Court found it "impossible to credit" these proffered purposes. 517 U.S. at 635. Noting that rational basis inquiry was meant to "ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law," 517 U.S. at 633, the Court held that

"[e]ven laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it." 517 U.S. at 635.

The Court faulted the Colorado constitutional amendment for imposing a "broad and undifferentiated disability on a single named group." 517 U.S. at 632. The Court further condemned the statute because "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects." 517 U.S. at 632. Additionally, the amendment was "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." 517 U.S. at 635. Because of these faults, the Court reached "the inevitable inference that the disadvantage imposed is born of animosity toward the class of [291] persons affected." 517 U.S. at 634. "`[D]esire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" 517 U.S. at 634 (quoting U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 [1973]). The result of these deficiencies was that, whatever else might be said of the amendment, it "offended" the "conventional and venerable" principle that "a law must bear a rational relationship to a legitimate governmental purpose." 517 U.S. at 635.

With these holdings to direct us, we begin our search for a rational basis for the harshly disparate sentencing treatment of those 18 years old and younger who engage in voluntary sex with an underage teenager of the same sex.

Legislative History

Although the legislature need not have articulated the basis for the classification the State relies upon when the classification is challenged, we begin with an examination of the legislative record to determine if a purpose for the classification is suggested therein.

The Kansas unlawful voluntary sexual relations (Romeo and Juliet) statute was originally drafted as an amendment to K.S.A. 21-3520, rather than as a free-standing statute. See L. 1999, ch. 164, sec. 38; 1999 S.B. 131. As it appeared in S.B. 131, the provision contained no requirement that the prohibited activity occur between members of the opposite sex. In other words, it would not have differentiated between a Romeo and Juliet relationship, a Romeo and Romeo relationship, or a Juliet and Juliet relationship.

The Kansas Sentencing Commission, which drafted the bill, offered the following testimony with regard to the provision:

"Numerous concerns have been raised by judges on the sentencing when the parties are in a mutual relationship and the parents or other parties initiate prosecution. This would allow for the sanctioning of the activity as a person felony, but would designate a presumptive nonprison sentence. In addition, a conviction under this new section would not require the offender to register as a sex offender, which may result in long term consequences." Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.

The Commission also noted that the provision was one of several recommendations that attempted to address proportionality issues. [292] The Commission's recommendations were based on the guiding principles that incarceration should be reserved for the most violent and chronic offenders and that the length of sentences should increase in proportion to the severity of the offense, with loss of human life being the most severe threat to public safety. Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.

There was significant opposition to the provision, although none of the recorded criticism faulted the statute for not containing language limiting the provision to heterosexual teen relations. The Kansas County & District Attorneys Association offered the following testimony opposing the provision:

"[W]e are opposed to the provisions that distinguish sex crimes based on the offender's age on two grounds:

"1. POLICY. A crime is a crime, whether committed by a 19-year-old or a 22-year-old, and, historically, the offender's age has only determined whether the case is filed in juvenile or adult court. As the attached testimony submitted by the Reno County Attorney there is a strongly-held belief that there are predatory relationships out there, regardless of the proximity in age between predator and victim. Those cases truly involving Romeo and Juliet are better left to prosecutor discretion; or more correctly victim and police discretion, since the prosecutor rarely hears about true Romeo and Juliet situations. Likewise, the bundling of the various consensual sex acts between Romeo and Juliet into a single crime is indicative that the State makes no distinction between heavy petting, sodomy or intercourse. Those . . . involved in the problem of teen pregnancy would beg to differ with that decision.

"2. LEGAL. . . . What is the state interest in making a distinction based on the difference in age? Is the victim less fondled or, in the extreme case, made less pregnant, simply because a defendant is near her own age? . . ." Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.

The Reno County Attorney testified that the law "will send a dangerous message to the young men and women of this State . . . that fourteen and fifteen year old girls are entitled to less protection and it is somehow less of an offense if the perpetrator happens to be near them in age." He noted that not all sexual relations between teenagers involve romantic relationships. Testimony on S.B. 131 before the Senate Judiciary Committee, February 11, 1999. Representatives of the Kansas Peace Officers' Association and the Attorney General also opposed the provision, [293] objecting on similar grounds. Kansas Peace Officers' Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999; Attorney General's Testimony on S.B. 131 before the Senate Judiciary Committee, February 11, 1999.

After S.B. 131 received hearings in committee and was reported to the Senate, the Senate passed the bill on a vote of 35 "ayes" and 5 "nays." Sen. J., 1999, p. 242. Although S.B. 131 was heard by the House Judiciary Committee, the House did not take final action on the bill. Eventually, in conference committee, the provisions of S.B. 131 were amended into 1999 S.B. 149. At that point, the phrase limiting the statute to relations between members of the opposite sex, making it a true Romeo and Juliet statute, was added along with other revisions not relevant to the facts of this case. See House J., 1999, p. 1165. Although the version of the Romeo and Juliet law which appears in S.B. 149 is different from the one contained in S.B. 131, there are no minutes reflecting how or why it was changed to include the "opposite sex" language. S.B. 149, and previously S.B. 131, contained many other juvenile and crime provisions. When the Senate voted to accept the conference report, 30 "yea" votes and 9 "nay" votes were cast. Sen. J., 1999, p. 1003.

As this review of the legislative history reflects, there is nothing in the legislative record regarding the legislative purpose for adding the opposite sex requirement. The only legislative purposes recorded relate to the general goal of less harsh punishment for those 18 years old and younger who had voluntary sex with another teen who was at least 14 and the goal of adjusting sentence disparities. It was opponents to the legislation who raised public health and moral concerns and none of them related to the difference between heterosexual and homosexual conduct.

Although the legislative history does not suggest the State's interest in including the phrase "and are members of the opposite sex," the State argues several possibilities. In addition, we must consider the rationales utilized by the Court of Appeals majority. These various possible State interests can be categorized as: (1) the protection and preservation of the traditional sexual mores of society; (2) preservation of the historical notions of appropriate sexual development of children; (3) protection of teenagers against coercive [294] relationships; (4) protection of teenagers from the increased health risks that accompany sexual activity; (5) promotion of parental responsibility and procreation; and (6) protection of those in group homes.

Traditional Sexual Mores and Development

Limon counters this theoretical justification by arguing that the State's moral disapproval of homosexuality is an illegitimate justification for discrimination.

The Lawrence decision rejected a morality-based rationale as a legitimate State interest. The Court recognized that many people condemn homosexuality as immoral:

"[T]he Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives." 539 U.S. at 571.

However, the Court continued by stating: "These considerations do not answer the question before us." 539 U.S. at 571. The Court framed the issue as "whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. `Our obligation is to define the liberty of all, not to mandate our own moral code.' Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 [, 120 L. Ed. 2d 674, 112 S. Ct. 2791] (1992)." 539 U.S. at 571.

Thus, when Texas argued that its anti-sodomy law furthered the promotion of morality (539 U.S. at 582 [O'Connor, J., concurring]), the Court in Lawrence rejected the argument and adopted the following reasoning from Justice Stevens' dissent in Bowers: "`[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.'" 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 [Stevens, J., dissenting]).

This holding followed the precedent of Casey, Eisenstadt, Romer, and other cases. The Court in Romer explained that our [295] laws are often morality-based which, in and of itself, is not objectionable if the laws are applied fairly to all. However, the right to equal protection of those laws is offended when legal classifications are drawn for the purpose of invoking moral disapproval with "the purpose of disadvantaging the group burdened by the law." Romer, 517 U.S. at 633.

The Court of Appeals majority would dismiss this analysis in Lawrence because of the due process context in which the discussion was made. The Lawrence majority, however, signaled application of the principles to equal protection analysis: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." 539 U.S. at 575. In essence, the Lawrence decision recognized that the substantive due process analysis at issue in that case and the equal protection analysis necessary in this case are inevitably linked.

This court has described this link as follows:

"The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. The test in determining the constitutionality of a statute under due process or equal protection concepts weighs almost identical factors." (Emphasis added.) Chiles v. State, 254 Kan. 888, Syl. ¶ 10, 869 P.2d 707 (1994).

Thus, we are directed in our equal protection analysis by the United States Supreme Court's holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.

Historical Notions of Appropriate Sexual Development of Children

The Court of Appeals also determined the Lawrence holding did not apply to this case because Lawrence involved adults and this case involved an adult in a relationship with a minor. Likewise, the State focuses its argument on the State's interest in the moral and sexual development of children.

[296] Undoubtedly, the State has broad powers to protect minors. This point was noted by the United States Supreme Court in Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977). Carey involved a constitutional challenge to a prohibition on distribution of contraceptives to persons under 16 years of age. The appellants argued that the free availability of contraceptives might encourage sexual activity among minors and the State had a legitimate interest in discouraging such behavior. In response, the appellees argued that minors as well as adults had a privacy right to engage in consensual sexual behavior. The Carey court noted that "in the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults." 431 U.S. at 694 n.17.

However, Carey held that "the right to privacy in connection with decisions affecting procreation extends to minors as well as adults" and invalidated the prohibition in question. 431 U.S. at 693. The Court noted that "State restrictions inhibiting privacy rights of minors are valid only if they serve `any significant state interest. . . that is not present in the case of an adult.' [Citation omitted.]" 431 U.S. at 693.

Although this case does not involve the fundamental right to privacy in connection with decisions affecting procreation or legislation which inhibits the rights of minors, the Carey rationale suggests that even when the articulated interest is the protection of minors, there still must be a connection between the State's interest and the classification and, if the burden would not be allowed if placed upon an adult, the State's interest must be unique to children. So, unless the justifications for criminalizing homosexual activity between teenagers more severely than heterosexual activity between teenagers are somehow different than the justifications for criminalizing adult homosexual activity, those justifications must fail.

Neither the Court of Appeals nor the State cites any scientific research or other evidence justifying the position that homosexual sexual activity is more harmful to minors than adults.

After this court accepted review of the Court of Appeals decision, the National Association of Social Workers and the Kansas [297] Chapter of the National Association of Social Workers filed an amici brief which specifically questions the Court of Appeals' conclusion that the exclusion of gay teens from the application of the unlawful sexual relations statute protects the traditional sexual development of children. That brief cites a number of studies indicating that sexual orientation is already settled by the time a child turns 14, that sexual orientation is not affected by the sexual experiences teenagers have, and that efforts to pressure teens into changing their sexual orientation are not effective.

We conclude, as the United States Supreme Court stated in Romer, the "status-based enactment [is so] divorced from any factual context" we cannot "discern a relationship" to the espoused State interest (Romer, 517 U.S. at 635) that the law preserves the sexual development of children consistent with traditional sexual mores. Additionally, we again recognize the Lawrence Court's conclusion that moral disapproval of a group cannot be a legitimate governmental interest.

Coercive Effect Upon Minors

The State at various times refers to the coercive effect often existing in a relationship between an adult and a child. Certainly, the State has a significant interest in prohibiting sex between adults and minors, not only because of the potentially coercive effect of an adult's influence but also because of concern regarding the minor's ability to arrive at an informed consent. These concerns are addressed by and form the fundamental policy rationale of statutory rape provisions. Limon's argument accepts and supports this State interest; he agrees he deserves punishment. He simply disputes that he should be punished more severely for having sex with a member of the same sex.

Additionally, the policy decision made by the legislature in enacting the Romeo and Juliet statute undercuts this argument. The legislature determined, at least as to those in a heterosexual relationship, that a mutual relationship between teenagers is less likely to involve the same coercion that a relationship between an older adult and a child might and is more likely to be one where the minor's participation is voluntary, although not legally consensual.

[298] This, however, begs the question of whether there is a rational basis to distinguish between a class of those 18 years old and younger who engage in voluntary sex with minors aged 14 or 15 who are of the same sex and a class of those 18 years old and younger who engage in voluntary sex with such minors of the opposite sex. We see no basis to determine that as a class one group or the other would have a higher tendency to be coercive. A distinction on this basis has no factual support.

The State makes the same argument in a narrower fashion as applied to the facts of this case, stating the activity between Limon and M.A.R. was "less than consensual and more likely coercive." Where the State stipulated below that the sexual activity between Limon and M.A.R. was consensual, it cannot be heard to argue on appeal that Limon's actions were "coercive and predatory." We agree the wording in the stipulation that the oral sex between Limon and M.A.R. was "consensual" was a legal misnomer and a better term would have been "voluntary," but that distinction does not permit the State to back away from its stipulation at this stage of the case.

Public Health

As to the public health justification, Limon argues that excluding gay teenagers from the lesser penalties of the Romeo and Juliet law has no connection with the State's interest in reducing the spread of sexually transmitted diseases. Specifically, the State focuses upon the risks of HIV and in support of its argument cites briefs filed before the United States Supreme Court in the Lawrence case.

We first note that there is no basis to determine that public health risks for minors engaging in same-gender sexual relations is greater than the risk for adults. That Lawrence did not discuss the often-cited justifications of public health and morality tells us that those interests are either not legitimate interests at all, or more likely, that they are not sufficient to overcome an individual's right to liberty and privacy.

At a minimum, we cannot distinguish between the health risks for the adults involved in Lawrence and the minor involved in this [299] case. Additionally, we find persuasive Limon's argument that for this justification to be rational, the prohibited sexual activities would have to be more likely to transmit disease when engaged in by homosexuals than by heterosexuals; however, this proposition is not grounded in fact.

Again, we have the benefit of additional arguments, including the amici curiae brief of a number of public health organizations which provided scientific and statistical information. These studies persuade us that the Romeo and Juliet statute presents one of those seemingly paradoxical situations where the classification is both over-and under-inclusive.

Using statistics from the United States Centers for Disease Control and Prevention (CDC) and other studies, the amici support the argument that the Court of Appeals majority and the State focus on the wrong population in citing the statistics regarding the incidence of HIV infection in adult homosexual males. Significantly, they point to the CDC's Basic Statistics which reflect that among the population of HIV-positive young people ages 13-19, which includes the age range covered by the Romeo and Juliet statute, 61 percent are female. Yet, the risk of transmission of the HIV infection through female to female contact is negligible. Recognizing that HIV is transmitted through intravenous drug use of shared needles and other mechanisms besides sexual transmission, the gravest risk of sexual transmission for females is through heterosexual intercourse.

There is a near-zero chance of acquiring the HIV infection through the conduct which gave rise to this case, oral sex between males, or through cunnilingus. And, although the statute grants a lesser penalty for heterosexual anal sex, the risk of HIV transmission during anal sex with an infected partner is the same for heterosexuals and homosexuals.

The legislative history reveals that the concern of conferees was more focused upon teenage pregnancy. Obviously, this public health risk is not addressed through this legislation. According to the Kansas Department of Health and Environment's Teenage Pregnancy Report for 2003, there were 1,559 pregnancies in Kansas teens age 15 to 17. In contrast, the same agency reports that [300] from 2000 to 2002 there were two cases of AIDS in Kansas among teenagers 13-19 years old.

Dissenting Judge Pierron cited several scenarios in which the statute did not protect against activities which raise a public health risk. In part, he stated:

"[U]nder the law a female infected with every venereal disease yet identified, and engaging in acts quite likely to infect or actually infecting a male minor, will receive a much lighter sentence. A disease-free male engaging in sex with another male in a manner not likely to spread disease if it was present will receive a much heavier sentence. Perversely, under the law, a male with a venereal disease who infects and impregnates an underage female will also receive a much lighter sentence." 32 Kan. App. 2d at 397-98.

In essence, the Romeo and Juliet statute is over-inclusive because it increases penalties for sexual relations which are unlikely to transmit HIV and other sexually transmitted diseases. Thus, the statute burdens a wider range of individuals than necessary for public health purposes. Simultaneously, the provision is under-inclusive because it lowers the penalty for heterosexuals engaging in high-risk activities. In other words, the statute proscribes conduct unrelated to a public health purpose and does not proscribe conduct which is detrimental to public health.

Thus, the conclusions of the Romer Court are, again, particularly salient. The status-based distinction in the Kansas Romeo and Juliet statute is so broad and so divorced from supporting facts that we cannot discern a relationship to the facially legitimate interest of protecting public health and "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects." 517 U.S. at 632. The "statute's superficial earmarks as a health measure" (Eisenstadt, 405 U.S. at 452) do not satisfy scrutiny under the rational basis test.

Promoting Parental Responsibility and Procreation

Limon also contends that there is no rational connection between the classification and the Court of Appeals' parental responsibility and procreation justifications. The Court of Appeals stated that the legislature might have determined that lengthy incarceration [301] of a young adult offender who has become a parent as a result of a heterosexual relationship with a minor would be counterproductive to that young adult's duty to support his or her child. But, because same-sex relationships do not lead to unplanned pregnancies, the need to release a same-sex offender from incarceration is absent.

Limon argues this justification and Judge Green's findings regarding the State's interest in relationships which lead to procreation make no sense since the State's interest is to discourage teen pregnancies, not encourage them. Further, the statute does not reduce penalties solely for conduct that results in pregnancy, but also for heterosexual intercourse which does not result in pregnancy, i.e., sodomy and lewd contact. Again, the relationship between the objective and the classification is so strained that we cannot conclude it is rational.

Protection of Those in Group Homes

The State also makes an argument that the State has an interest in gender segregation in group homes. The Romeo and Juliet statute has no limitation related to living arrangements or disability. If the statute punished similar behavior in segregated group homes for juveniles, the State's argument could conceivably justify a harsher penalty. However, the statute is not limited in this manner. If the legislative purpose is to protect those in group homes, the statute's overbreadth in covering situations both inside and outside residential living environments suggests animus toward teenagers who engage in homosexual sex. See Romer, 517 U.S. at 632.

No Rational Basis

We conclude that K.S.A. 2004 Supp. 21-3522, the Kansas unlawful voluntary sexual relations statute, does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" [302] created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).

Because we determine the statute violates constitutional equal protection guarantees based upon a rational basis analysis, we need not reach Limon's other arguments that strict scrutiny should be applied, including his argument that the statute discriminates based on sex.

Appropriate Remedy

Given our holding, we must determine the appropriate remedy. Limon asks this court to: (1) strike the language from the Romeo and Juliet statute that limits its application to members of the opposite sex and (2) reverse and remand this case with instructions that the State initiate any further proceedings under the Romeo and Juliet law within 30 days. The State argues that this court cannot judicially rewrite the statute and contends that, if the court were to declare the challenged classification unconstitutional, it must nullify the statute.

On several occasions, this court has considered severing an unconstitutional provision from a statute and leaving the remainder in force. Each time, we have reiterated that the determination of whether the provision may be severed "depends on the intent of the legislature." State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, Syl. ¶ 16, 955 P.2d 1136 (1998). See, e.g., State v. Carpenter, 231 Kan. 235, 240-41, 642 P.2d 998 (1982) (striking phrase from statute as unconstitutionally vague); Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 588, [303] 618 P.2d 837 (1980) (striking phrase from statute which unlawfully delegated legislative power). We have applied the same test when reading judicial requirements into statutes which otherwise were overbroad, if doing so reflects the "manifest intention of the legislature." State v. Motion Picture Entitled "The Bet," 219 Kan. 64, 71, 547 P.2d 760 (1976) (imposing constitutional standard upon statutory definition of "obscene").

When an alteration of a statute — either through striking language or adding judicial requirements to the statute — would be contrary to legislative intent, courts must nullify the statute. This point was emphasized in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2005), cert. granted ___ U.S. ___, 161 L. Ed. 2d 1109 (2005), in which this court nullified the Kansas death penalty statute after finding it unconstitutional. Marsh raised the constitutionality of the statute because the jury had been instructed, consistent with the statute, that the death penalty must be imposed if aggravating and mitigating circumstances weighed equal, in other words were in equipoise. Marsh argued his death sentence must be reversed because this equipoise provision had been found to violate the Eighth Amendment in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002). Marsh also argued that this constitutional infirmity required nullification of the death penalty statute, a result which would require reversing portions of the Kleypas decision. Specifically, Marsh argued the Kleypas court had erroneously applied precedent and improperly rewritten an unambiguous statute in a manner clearly contrary to legislative intent.

The majority in Marsh agreed with this argument. First, the Marsh court noted, "the avoidance doctrine [under which courts seek to construe statutes as constitutional] is applied appropriately only when a statute is ambiguous, vague, or overbroad." 278 Kan. at 539. The provision of the death penalty statute was not ambiguous, vague, or overbroad. The express language adopted by the legislature made it clear that the legislature intended to mandate the imposition of a death sentence where the existence of aggravating circumstances is not outweighed by any mitigating circumstances found to exist. In other words, there was no ambiguity and, therefore, no basis to apply rules of statutory construction. Second, [304] the Marsh court, citing decisions of this court and of the United States Supreme Court, reiterated the long-standing and well-established rule that a court can only "`construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.'" 278 Kan. at 539. The majority concluded that the statutory construction adopted in Kleypas was not within the apparent intent of the legislature. The legislative history of the death penalty statute showed that the attorney general had presented the legislature the precise question of whether the equipoise provision was constitutional. The attorney general recommended that the statute provide that the aggravating circumstances must outweigh the mitigating circumstances before a death sentence may be imposed and advised that without this change the constitutionality of the statute was in question. Despite this specific recommendation and advice, the legislature did not act on the attorney general's advice. 278 Kan. at 540. Thus, to read the statute in the manner suggested in Kleypas was contrary to legislative intent. The Marsh court concluded it was a violation of the separation of powers doctrine for the court to rewrite a statute in a manner so clearly contrary to the legislative intent. The only option in such a situation is to nullify the statute.

In this case, it is the State suggesting that the statute must be nullified if found unconstitutional. Limon, noting that the statute is overbroad, thus making it appropriate for the court to consider the remedy of striking language, suggests there is evidence of a legislative intent to have the offending language struck rather than to nullify the entire provision. He points to the severance provision within the sex crimes statutes.

We have noted that, although our decision to strike language is not dependent upon the presence of a severance provision, "[t]he enactment of a severability clause in a statute or series of statutes evidences the intent of the legislature that if some portion or phrase in the statute is unconstitutional, the balance shall be deemed valid." State v. Next Door Cinema Corp., 225 Kan. 112, Syl. ¶ 8, 587 P.2d 326 (1978). In this case there is an applicable severability provision which applies to all sex crimes and provides: "If any provision of this act is held to be invalid or unconstitutional, it shall [305] be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision." K.S.A. 2004 Supp. 21-3521. The severability clause was already in place (it was enacted in 1998) at the time the Romeo and Juliet law was enacted in 1999. Thus, it is conclusively presumed the legislature would have enacted the statute even if it did not include the phrase "and are members of the opposite sex."

There are other considerations which also lead us to conclude that the legislative intent would be to strike the offending language rather than nullify the entire statute. These considerations were discussed in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004). At issue in Denney was whether there was an equal protection violation because K.S.A. 21-3502 allowed postconviction DNA testing in a rape case but not in an aggravated criminal sodomy case. After concluding there was no rational basis for allowing DNA testing for rapists but not allowing testing for Denney who had penetrated a female's anus with his penis, we concluded the statute was under-inclusive.

In considering a remedy, we extensively discussed applicable general rules and specifically examined use of those rules in two cases: Califano v. Westcott, 443 U.S. 76, 61 L. Ed. 2d 382, 99 S. Ct. 2655 (1979), and People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567 (1984). We need not repeat the full discussion here. Summarizing that discussion, we stated:

"[T]he question before us is whether the Kansas Legislature would prefer to have statutes which cover DNA testing for those convicted of aggravated criminal sodomy like Denney, or instead to have no statutes providing for postconviction DNA testing. To answer this question, we first consider the legislative purpose.. . . We next consider the public's needs. . . .

"As an additional consideration, we also examine the overall statutory scheme." Denney, 278 Kan. at 659-60.

In this case, the first two inquiries mentioned—legislative purpose and public need—are closely related. As previously discussed, the principal legislative purposes of the Romeo and Juliet statutes were to accommodate the situation where a teen relationship reduces the level of coercion potentially involved in a sexual relationship between an adult and a minor and to adjust the proportionality [306] of sentences. These purposes are not harmed by striking the language and, some would argue, are actually furthered through the revision.

The next consideration under Denney is the overall statutory scheme. We have stated: "Where parts of a statute or a section of a statute can be readily separated, then the part which is constitutional may stand while the unconstitutional part is rejected." State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. at 316. In this case, the phrase "and are members of the opposite sex" can readily be struck without creating an ambiguous statute.

In State ex rel. Tomasic we also noted that, if from the legislative scheme "it can be said that the act would have been passed without the objectionable portion and if the statute would operate effectively to carry out the intent of the legislature with such portion stricken, the remainder of the law will stand as valid." 264 Kan. 293, Syl. ¶ 16.

In this case, we are assisted in this inquiry by the legislative history, specifically, the Senate vote on S.B. 131, which did not include the language that makes the provision unconstitutional. The Senate approved that proposal on a vote of 35 "ayes" to 5 "nays." Sen. J., 1999, p. 242. Hence, although a vote was not taken in both chambers of the legislature on S.B. 131, we know that the Senate, at least, supported the legislation without the offending language—indeed, with more yea votes than the measure drew once the offending language had been added.

From this examination, we conclude that several factors—the severability clause, the legislative purposes, the public need, the legislative scheme, and the legislative history—reveal that striking the offending language rather than nullifying the statute would be consistent with legislative intent.

Conclusion of Equal Protection Analysis

We hold K.S.A. 2004 Supp. 21-3522 unconstitutional as violating the equal protection provisions of the United States and Kansas Constitutions and strike from the statute the words "and are members of the opposite sex." We further hold that Limon's conviction [307] and sentence for criminal sodomy pursuant to K.S.A. 21-3505(a)(2) violate his right to equal protection of the laws.

We further grant Limon's requested remedy of imposing a time limit upon further proceedings in this case and order that the State will have 30 days in which to: (1) charge Limon under the provisions of K.S.A. 2004 Supp. 21-3522 without the words "members of the opposite sex" or (2) take other action.

Because we reach these holdings, we need not decide Limon's argument that his sentence was cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

Apprendi Argument

We must, however, consider one additional issue raised by Limon. He contends that increasing his sentence based on his prior juvenile adjudications violates the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). Limon recognizes that this argument was rejected in State v. Hitt, 273 Kan. 224, 235-36, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), but raises the issue to preserve it for future review in the federal courts and to give this court a chance to reconsider Hitt.

Hitt held that juvenile adjudications "enjoy ample procedural safeguards" and are encompassed in the Apprendi exception for prior crimes. 273 Kan. at 236. This court has declined to overrule Hitt as recently as June 2004. See State v. Carter, 278 Kan. 74, 91 P.3d 1162 (2004).

More importantly, Limon did not raise this issue before the Court of Appeals; thus the issue is not properly before this court. See State v. Layton, 276 Kan. 777, 784, 80 P.3d 65 (2003) (where issue raised in petition for review was neither presented to nor decided by Court of Appeals, issue was not properly before this court).

Reversed and remanded with directions.

[308] DAVIS, J., and GERNON, J., not participating.

LARSON, S.J., assigned.

538 U.S. 1 (2003)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

[2] REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 8. SOUTER, J., filed a concurring opinion, in which GINSBURG, J., joined, post, p. 9. STEVENS, J., filed an opinion concurring in the judgment, post, p. 110.

Richard Blumenthal, Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Gregory T. D'Auria, Associate Attorney General, and Lynn D. Wittenbrink, Perry Zinn Rowthorn, and Mark F. Kohler, Assistant Attorneys General.

Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Clement, Gregory G. Garre, Leonard Schaitman, and Mark W. Pennak.

[3] Shelley R. Sadin argued the cause for respondents. With her on the brief were Drew S. Days III, Beth S. Brinkmann, Seth M. Galanter, Philip Tegeler, and Steven R. Shapiro.^[1]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined [4] the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F. 3d 38, 44, 46 (2001) (internal quotation marks omitted). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme.

"Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U. S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted [5] of sexually violent offenses must register for life. Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001).

The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. §§ 54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "`Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" § 54-258a.

Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website:

"`The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" 271 F. 3d, at 44.

Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe (hereinafter respondent) is a convicted sex offender who is subject to Connecticut's Megan's [6] Law. He filed this action pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "`dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest — his reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard." 271 F. 3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F. Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions.

The Court of Appeals affirmed, 271 F. 3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "`disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "`identifying [them] as being included in the Registry.'" Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U. S. 1077 (2002).

In Paul v. Davis, 424 U. S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute [7] the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute.

In cases such as Wisconsin v. Constantineau, 400 U. S. 433 (1971), and Goss v. Lopez, 419 U. S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F. 3d, at 44 ("`Individuals included within the registry are included solely by virtue of their conviction record and state law'" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§ 54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F. 3d, at 44 ("`[DPS] has made no determination that any individual included in the registry is currently dangerous'").

In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any [8] hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in `procedural due process' terms." Reno v. Flores, 507 U. S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondents 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U. S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (STEVENS, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process.

Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore

Reversed.

JUSTICE SCALIA, concurring.

I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondents, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due" — just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondents have not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, [9] as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver.

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring.

I join the Court's opinion and agree with the observation that today's holding does not foreclose a claim that Connecticut's dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut's disclaimer, ante, at 5, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents' situation.

Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. A court may exempt a convict from registration altogether if his offense was unconsented sexual contact, Conn. Gen. Stat. § 54-251(c) (2001), or sexual intercourse with a minor aged between 13 and 16 while the offender was more than two years older than the minor, provided the offender was under age 19 at the time of the offense, § 54-251(b). A court also has discretion to limit dissemination of an offender's registration information to law enforcement purposes if necessary to protect the identity of a victim who is related to the offender or, in the case of a sexual assault, who is the offender's spouse or cohabitor. §§ 54-255(a), (b).^[2] [10] Whether the decision is to exempt an offender from registration or to restrict publication of registry information, it must rest on a finding that registration or public dissemination is not required for public safety. §§ 54-251(b), 54-255(a), (b). The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislative decision to make courts responsible for granting exemptions belies the State's argument that courts are unequipped to separate offenders who warrant special publication from those who do not.

The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. See, e. g., 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 17.6 (3d ed. 1999); L. Tribe, American Constitutional Law § 16-34 (2d ed. 1988). The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Today's case is no occasion to speak either to the possible merits of such a challenge or the standard of scrutiny that might be in order when considering it. I merely note that the Court's rejection of respondents' procedural due process claim does not immunize publication schemes like Connecticut's from an equal protection challenge.

[For opinion of JUSTICE STEVENS concurring in the judgment, see post, p. 110.]

[1] Briefs of amici curiae urging reversal were filed for the District of Columbia et al. by Robert R. Rigsby, Corporation Counsel of the District of Columbia, Charles L. Reischel, Deputy Corporation Counsel, and Edward E. Schwab, Senior Assistant Corporation Counsel, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Robert Torres of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodríguez of Puerto Rico, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the National Governors Association et al. by Richard Ruda and James I. Crowley; for the Center for the Community Interest by Robert J. Del Tufo; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

Briefs of amici curiae urging affirmance were filed for the Association for the Treatment of Sexual Abusers by David A. Reiser; for the Office of the Public Defender for the State of New Jersey by Peter A. Garcia, Michael Z. Buncher, and Brian J. Neff; and for the Public Defender Service for the District of Columbia et al. by James W. Klein, Samia A. Fam, and Corinne A. Beckwith.

Lucy A. Dalglish and Gregg P. Leslie filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae.

[2] To mitigate the retroactive effects of the statute, offenders in these categories who were convicted between October 1, 1988, and June 30, 1999, were allowed to petition a court for restricted dissemination of registry information. §§ 54-255(c)(1)-(4). A similar petition was also available to any offender who became subject to registration by virtue of a conviction prior to October 1, 1998, if he was not incarcerated for the offense, had not been subsequently convicted of a registrable offense, and had properly registered under the law. § 54-255(c)(5).

 

1) Whether DeLawder's right of cross-examination was violated under the rule of Davis v. Alaska, supra.

 

2) If so, whether Davis has retroactive application

"In regard to the first motion made by the State, we proffer that there are two witnesses, one which will testify that he had a conversation with this young lady two days after this incident allegedly occurred, at which time she told him she was pregnant by another man.

 

Her mother, there will be testimony to the effect that her mother is very strict, not the type of person that a girl could come home and tell her mother she was pregnant.

 

We have testimony from the girl's best friend that this girl, [the prosecutrix], told the best friend that she was pregnant, and that either Stanley Hicks or Darrell McDonald was the father.

 

This supposedly occurred prior to the time this alleged rape took place."

"Q. Do you recall having a conversation two days after this incident took place with a boy named Tommy Soper?

 

A. No, sir.

 

Q. You do not recall having such a conversation?

 

A. No, sir.

 

Q. Do you recall that Kenny Jones and Tommy Soper came to your house at that time?

 

A. Yes, sir; I do.

 

Q. And you did not have a conversation with Tommy Soper?

 

A. No, sir.

 

Q. You never said a word to him?

 

A. No."

"Q. At the time of this alleged rape, I am talking about before the alleged rape took place, did you think you were pregnant?

 

A. No, sir.

 

Q. Do you know a girl named Pamela Henning?[^[6]]

 

A. Yes, sir.

 

Q. As a matter of fact, she is your best friend, isn't she?

 

A. Yes, sir.

 

Q. You do not recall telling her something different?

 

MR. MITCHELL [Assistant State's Attorney]: I object now, Your Honor. Pamela testified at the trial.

 

MR. SMALLWOOD [Defense Counsel]: No, sir.

 

THE COURT: Objection be sustained."

"Your Honor, in order to properly defend this man, I have got to show a motive for this girl lying about it.

 

I proffer that her mother is very strict and has on occasion beat this girl until she was black and blue with a board, never allowed her to date....And this girl was scared to death of her mother and could not go home and tell her mother that she was pregnant; but if she could go home and tell her mother, `I've been raped; now, I am pregnant,' she could then get off the hook.

 

I state, Your Honor, that it is perfectly proper for me to bring this fact out to show this girl's motive [224] for lying, especially when two witnesses who will testify that this girl said she was pregnant around that time by either Stanley Hicks or Darrell Anderson; and she also phoned another boy by the name of Russell Alder and accused him, or his cousin, of making her pregnant.

 

I state, Your Honor, that that is sufficient to give this girl a motive for lying about a man raping her.

 

Not only that, but at the time she went to the hospital, before she went to the hospital, she lied to the police officer and told him that she had intercourse with a boy named Michael Ryan."

"You know all of this is not going to be permitted at this trial. This is a carnal knowledge of a girl under fourteen.... [^[7]]

 

You are talking about all kinds of conjecture which I think really is going beyond the proper evidence in this case."

"Q. What did you tell Officer Householder?

 

A. Just what I told you all.

 

Q. You did not tell him anything additional to what you told us?[225]

 

A. No.

 

Q. Did you tell him anything about Michael Ryan?

 

MR. MITCHELL: I object, Your Honor.

 

THE COURT: You may answer that yes or no. Do not say anything more.

 

THE WITNESS: Yes, I did.

 

BY MR. SMALLWOOD:Q. What did you tell him?

 

MR. MITCHELL: I object,

 

THE COURT: Objection be sustained:

"Q. Are you afraid of your mother?

 

MR. MITCHELL: I object.

 

THE COURT: Sustained.

 

MR. SMALLWOOD: May we approach the bench, Your Honor?(Whereupon, bench conference as follows:)

 

MR. SMALLWOOD: Your Honor, I would like to establish the relationship between this girl and her mother as to her fear of telling her mother that she thought she was pregnant at that time.I think that is very relevant to this case as establishing her motive for lying about this alleged rape.I mean the jury is not going to believe a man's story if they cannot see some motive for the girl lying. If she is scared to death of her mother, she is not about to walk through the door and say, `Ma, I'm pregnant.'

 

MR. MITCHELL: The rules of evidence do not conform to counsel's theory in the case.

 

THE COURT: All right, you have your statement in the record. I do not think that that — well, I think the exception is well taken.[226] Whether she was scared of her mother per se is not relevant in this case at this time."

[1] 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 seethrough top garments which seem indicative of socially aberrant behavior;

 

[2] 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]

 

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

Bruce P. Hackett, Assistant Public Defender, Office of the Louisville Metro Public Defender, Louisville, KY, for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Carlton S. Shier, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, for Appellee.

Honorable Lisabeth Hughes Abramson, Judge.

Appellant, Samuel Earl McCullum, was convicted in the Jefferson Circuit Court of first-degree Sodomy and first-degree Unlawful Imprisonment and Possession of a Firearm by a Convicted Felon. He was sentenced to thirty-five (35) years in prison and appeals to this Court as a matter of right. For the reasons set forth herein, we reverse Appellant's convictions and remand for a new trial consistent with this opinion.

FACTS

On Sunday, May 19, 2002, the Appellant encountered the victim, hereinafter referred to as "A.J.," at the bus stop on the comer of 18th and Broadway in Louisville. A.J., who testified she was waiting for a bus to take her home after spending the night with a friend, arrived at the bus stop at approximately 7:45 a.m. (though the bus was not scheduled to arrive until 8:30 a.m.). Appellant was traveling from his home in Jeffersonville, Indiana to his auto repair business on Dixie Highway. On the way he drove past A.J. Mistakenly believing he recognized her, he returned to the bus stop—then realized he was wrong. Nonetheless, he offered A.J. a ride, which she accepted. They drove to within two houses of her residence, when she indicated she did not want to get out of the car and asked Appellant to take her to the White Castle restaurant so she could get something to eat. Appellant complied, but told A.J. he needed to stop by his business, The Tool Box, for a few minutes to print some paperwork. A.J.'s and Appellant's versions of the story are much the same up to this point, but from here on, they diverge—with A.J.'s version detailing a day of forcible rape and sodomy—while Appellant's version reflects a day of consensual sex.

A.J. testified that once the pair arrived at The Tool Box and after she had finished eating her White Castle meal, she was raped three times by Appellant and held against her will, bound with chains and duct tape, for approximately seven and one-half hours and then forcibly sodomized after making a 911 call, but be fore rescue by the police. A.J. testified she was raped twice downstairs and then a third time in the upstairs portion of the building, all occurring by approximately 9:30 a.m.

She testified after the third rape and after returning downstairs, Appellant came in and out of the room she was in and, on one of these trips, bound her to a pole with duct tape and then left again. However, she was able to free herself. When Appellant returned the next time, he bound her again with the duct tape, using more and this time covering her mouth and wrapping it around her head. Nonetheless, she was once again able to free herself.

Because A.J. was able to escape again, Appellant wrapped a chain around her neck and waist and padlocked her to the pole. He then duct-taped her and put a rag in her mouth. She testified that once Appellant left again (this time for approximately one hour and forty-five minutes) she was again able to free herself and dialed 911 on her cellular telephone.^[1] She testified that during the call, she heard the door open so she threw the phone down, without disconnecting the call, and sat back down by the pole.

A.J. testified Appellant then re-entered the room and stated that he knew she would get out and that he had gone home to take care of some business. According to A.J., Appellant again wanted to engage in sexual relations with her. She testified that he unzipped his pants, took out his penis and demanded she put it in her mouth; A.J. refused, the Appellant slapped her, told her not to say what she would not do, and grabbed her by the neck and forced his penis in her mouth. This, according to A.J., caused her to vomit. Appellant was displeased and told her to lie down and he proceeded to get on top of her. At that point, they heard loud knocking on the door. Appellant immediately jumped up and chained her back against the pole. The loud knocking turned out to be the police responding to the 911 call.

Appellant's version of the story is quite different. He testified that A.J. was eating her food and he was going over an ignition circuit diagram for a car he was working on. He stated that he first initiated sex with A.J. by placing his hands on her thighs and she reciprocated by doing the same to him. This led to sexual intercourse. Shortly thereafter, the pair engaged in sexual intercourse again in the same office. He stated that the third occasion of sexual intercourse occurred after A.J. expressed curiosity in an upstairs office and the pair went up to that office.

Appellant testified that A.J. smoked a cigar on numerous occasions during the day. At one point he observed her hollowing a cigar out and inquired of her what she was doing. A.J. replied she was "freaking it," or removing the filter and tobacco and replacing it with marijuana. He testified that the second time she smoked one of her cigars, he could smell marijuana.

Appellant testified that during one of their conversations, A.J. asked him if he had ever been handcuffed. He said he had experimented with an old girlfriend, but was "not into it." He advised A.J. to use silk scarves, etc., rather than metal handcuffs. The use of the duct tape, however, began when he introduced A.J. to what he called "the kissing game." According to Appellant, part of the game was to kiss the other person on different parts of the body without using the hands in any way. When A.J. kept using her hands, he wrapped them together with the tape. A.J. participated willingly and was able to pull her hands apart afterward. He testified that she asked him if she could do the same to him and he declined.

Appellant testified that A.J. had brought up the subject of money for sex on two occasions. First, she told him that she was supposed to be braiding her aunt's hair for which she would get $25.00. She asked Appellant if he would give her $25.00. Appellant told her he would and interpreted the request as payment for sex since she had waited until after the sex to make the request. Second, A.J. asked Appellant if he would take her to the Jefferson Mall. He responded that he could do that later. A.J. told him a long list of things that she wanted him to buy for her. Appellant testified that he had no intention of buying the things A.J. wanted. It was after this discussion that A.J. mentioned her upcoming graduation from high school. Appellant testified that he sensed something was wrong as A.J. had earlier told him she was 21 years old, and then, later told him she was 18 years old.

Appellant testified that once A.J. realized he was not going to take her to the mall and buy her the things she wanted, she threatened to call the police and say she was only seventeen and Appellant had raped her. Appellant testified that he panicked upon hearing the threat and led A.J. to a back room where he taped her to the pole; Appellant did not use the chains which were in the room. Appellant testified he taped A.J. to the pole to give her time to cool off.

At this point, Appellant testified that he received a phone call and traveled to his home in Jeffersonville, Indiana, returning to The Tool Box approximately 45 minutes later. When he returned, A.J. had freed herself from the duct tape. She asked him how long he had been gone and said that she had been calling for him. He testified that she was aggravated that he had left.

Appellant stated that the conversation again led to sex. A.J. was the aggressor this time, performing oral sex on Appellant. Appellant had no idea A.J. had already made a 911 call and given her general location.

During all this, Louisville Metro Police Officer Heather Boggs arrived on the scene, unsure at that time if the location was that of the 911 call, as A.J. had put the phone down before she could give her exact location. Officer Boggs believed she may have found the location, one fitting the description given by A.J. She noticed the gate to The Tool Box was open. This was unusual because it was Sunday and she had observed the business to be closed on the prior Sunday. Because the 911 call had not been disconnected, the dispatcher, Melissa Harley, could assist the officer in determining that she was at the correct location. Specifically, the officer inquired as to whether the dispatcher could hear her knocking and kicking on the shop doors and whether the dispatcher could hear the barking dogs inside the shop. The dispatcher confirmed she could hear the knocking as well as the barking dogs.

As Officer Boggs was attempting to gain entry into the shop, Officer Darren Utsey arrived. Both he and Officer Boggs continued kicking on doors until Officer Utsey managed to kick one open. At that time, Officer Boggs returned to her cruiser to retrieve a flashlight so the officers could make their way through the building. By the time the officers were just inside the door, they were met by the Appellant.

The officers informed Appellant they were responding to a 911 call and needed to confirm that everything was alright. Appellant told the officers that he and his girlfriend were fighting and it was probably a "crank call."

Appellant walked them through the building and told them of A.J.'s presence and that she wanted to "play this game." As they continued through the building, they heard a scream from another room leading the officers to immediately handcuff Appellant. By this point, a third officer, Detective Finch, had arrived on the scene. Officer Utsey remained with Appellant, while the other officers continued the search for the then unknown 911 caller.

Ultimately, the officers located A.J. in a small room in the back of the building. When they found her, she was crying and appeared "clearly in absolute distress." She was duct taped with a chain around her neck and padlocked to a pole. She was seated with her pants pulled down to her ankles. After her release from the chain and duct tape, A.J. informed the officers that the Appellant had a gun. The officers located a loaded handgun in the office near his briefcase.

Appellant admitted using duct tape on A.J., but denied binding her with the chains. He stated the chains were in the room with A.J. when he left to see what the police were doing but that he did not know how the chain got on her.

A.J. was transported to the hospital where she was seen by Dr. Lisa Reynolds. Dr. Reynolds collected "rape kit" evidence from A.J. to compare with evidence from the Appellant.^[2]

As part of the investigation, Appellant's business computer was seized as evidence. This led to the discovery that on May 19, 2002, someone accessed a video clip entitled "Asian—Two Guys Rape Japanese Girl." Specifically, the video was accessed at 10:02 a.m. that day, after the three initial sexual encounters, but before the alleged implementation of the duct tape, chain and sodomy.

Also, a day planner/calendar or "diary" was retrieved from a purse belonging to A.J. The "diary" included numerous entries detailing A.J.'s sexual exploits and personal drug use. The diary noted the name and the date of the sexual encounters and in one instance detailed their financial nature.

A.J.'s cell phone records were obtained and revealed several incoming calls to the phone on May 19, 2002, beginning at 10:23 a.m. One of the calls was four minutes in duration and originated from A.J.'s friend Corey Brown, with whom she had spent the previous night.

At trial, Appellant moved to introduce the "diary" belonging to A.J. However, the trial court denied the defense's motion. The trial court, however, over Appellant's objection, admitted the testimony by Detective Kevin Lamkin as to the computer "rape" video, even though it had previously ruled it inadmissible. The trial court's ruling of admissibility was premised on the basis that Appellant had opened the door when he stated he only did work on his computer that day.

After deliberations, the jury returned not guilty verdicts on the three rape charges, but guilty on the Sodomy and Unlawful Imprisonment. In the sentencing phase, the jury returned verdicts recommending the maximum sentence of 20 years for Sodomy and 5 years for Unlawful Imprisonment.

Thereafter, Appellant also entered a plea of guilty to Possession of a Firearm by a Convicted Felon. His later motion to amend the guilty plea to an "Alford" plea was denied and Appellant was sentenced to the maximum 10 years on the firearm charge. All sentences were ordered to be served consecutively for a total of 35 years imprisonment. Appellant appeals his convictions.

He claims the trial court: (1) erred in instructing the jury; (2) erred in ruling Appellant could be impeached by a 19–year–old conviction from New Jersey; (3) erred by allowing the Commonwealth to present evidence of the "Asian Rape video"; (4) erred when it refused introduction of A.J.'s "diary" into evidence; and (5) erred when it refused to allow Appellant to withdraw his guilty plea and substitute an "Alford" plea. We will address each claim of error separately.

PROPOSED JURY INSTRUCTIONS

Appellant's first claim of error arises from the instructions submitted to the jury upon the close of evidence at trial. Appellant claims the trial court should have adopted his version because his proposed instructions more accurately reflected the proper allocation of the burden of proof. The trial judge rejected the tendered written instructions stating that she was going to use "what I always use in criminal cases," that is, instructions that are "right out of Cooper." Appellant claims that the rejected instructions were actually similar to the language contained in 1 Cooper, Kentucky Instructions to Juries (Criminal), §§ 2.10A–2.01D, pp. 67–68 (4th ed. Anderson 1999) (hereinafter Cooper). We disagree.

Appellant's proposed jury instructions were phrased to read, "You will find the Defendant, Samuel McCullum, not guilty of ... under this instruction unless and only if, you believe from the evidence beyond a reasonable doubt all of the following...." The instructions actually given provided that the jury "will find the Defendant, Samuel McCullum, guilty under this Instruction if and only if, you believe from the evidence beyond a reasonable doubt ..." Further, Instruction No. 1 specifically put the jury on notice that it could find the Defendant not guilty, or could find him guilty. Instruction No. 7 notified the jury of the presumption of innocence, and specifically stated:

"The law presumes a defendant to be not guilty of a crime and the indictment shall not be considered as evidence or as having any weight against him. You shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that he is guilty. If upon the whole case, you have a reasonable doubt that he is guilty, you shall find him not guilty."

In comparing the proposed instructions and those submitted to the jury, it is clear that the trial court provided the jury with proper instructions. Moreover, the "Cooper instructions" are worded just as those submitted by the trial judge. As such, we find no error in the trial court's jury instructions.

MCCULLUM'S 19–YEAR–OLD CONVICTION

As his second claim of error, Appellant argues the trial court abused its discretion by admitting evidence of his 1984 New Jersey conviction for second-degree sexual assault.

Appellant claims the prejudice resulting from his impeachment by a 19–year–old prior felony conviction was not substantially outweighed by any probative value the conviction may have possessed, even though the jury was not informed of the nature of the prior conviction.

KRE 609(b) provides:

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

The balancing of the probative value of such evidence against the danger of undue prejudice is a task properly reserved for the sound discretion of the trial judge. Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky.1970). And such decisions of the trial court will not be overturned on appeal absent an abuse of that discretion. See Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996).

Here, the trial judge held:

"Well, let me state this ruling differently. The probative value of the conviction substantially outweighs its prejudicial effect. The New Jersey case was essentially for the same type of conduct that's on trial here. And there was a conviction in that case. It's an adjudicated conviction. It's a jury verdict. Okay, here we are, once again, in front of a jury. And once again, Mr. McCullum's charged with the same type of conduct. And once again, presumably he denied it last time or he wouldn't have gone to trial. And it's being denied this time. I think it's highly probative. I think it's a prime example of what 609(b) was designed for, which was to state a ten-year guideline generally, but to give the trial judge discretion, if they think it has probative value. And in my exercise of discretion, I conclude that it does have probative value because his whole defense here is that this was all voluntary acts, as I understand it, on the part of the victim.And I think under those circumstances, when he's got an adjudicated determination that conduct occurred in the past and he was guilty of it, I don't see any reason why this jury shouldn't hear that he's been convicted of a felony. Now, once he acknowledges the felony conviction, under our rules, that's the end of it. They won't hear what it was for unless there's some manner in which he opens the door.

This "similarity rationale" is suggestive of a propensity analysis—he did something like this before, thus it is believable he would again—but the rationale is violative of the principles enunciated in KRE 404(b). "Courts have universally agreed for more than a century that evidence of other crimes, wrongs, or bad acts cannot be used to prove a defendant's propensity to commit crimes in order to show that he or she committed the charged crime." R. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], p. 124 (4th ed.2003).

Under KRE 609(a) and (b), the nature of the charge is not disclosed; nor was the jury otherwise advised here. Thus, the conviction wasn't admitted to show "propensity," but to show the Appellant wasn't a trustworthy or truthful person. In this regard, it seems the probative grounds weighed in the analysis must be relevant under KRE 609(b). Propensity's inadmissibility under KRE 404(b) suggests it should not be a relevant consideration under KRE 609(b). And as credibility appears to be the focus under KRE 609(b), there must be some intended correlation between the aged conviction submitted and the credibility of the witness.

When a trial court is charged with determining admissibility of an aged conviction, "[t]he balancing test that is normally used to determine admissibility (KRE 403) is turned on its head and trial judges are directed to tilt strongly in favor of excluding such convictions." Lawson, supra, § 2.25 [2], at 318.^[3]

"The age of a conviction (its recentness or remoteness to the date of trial) has always been viewed as a factor bearing on its probative value, because the conviction is admitted as proof of the witness' character for truthfulness as of the time cf his or her testimony at trial."Id. at 317. Thus, this Court has upheld the admissibility of a 13–year–old conviction, but we have also held a 17–year–old conviction inadmissible...." Brown v. Commonwealth, 812 S.W.2d 502, 503 (Ky.1991) (held error to admit 22–year–old conviction), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997).

More recently, we have recognized that the impact of a witness' testimony is a factor in the probative balancing under KRE 609(b).Miller ex rel. Monticello Banking Co. v. Marymount Medical Center, 125 S.W.3d 274 (Ky.2004). Another factor in the probative balancing would be the nature of the prior conviction, e.g., " .... [a conviction for burglary is a crime of dishonesty that ....would be more probative of untruthfulness than a conviction of e.g., rape." Id. at 284—85 (trial court properly admitted evidence of Plaintiff's 10–plus–year–old burglary conviction) citing Commonwealth v. Richardson, 674 S.W.2d 515, (Ky.1984); a holding suggestive of a more stringent relevancy to an untruthfulness requirement under KRE 609(b).

In Cotton v. Commonwealth, 454 S.W.2d 698, 701 (Ky.1970), we held "that except for felonies involving dishonesty, fraud, false swearing or theft, the prejudice ....outweighed the impeachment value of such proof." Richardson at 518. Richardson overruled Cottonand is the basis for KRE 609(a), but it is not the basis for KRE 609(b).

We have always retained a belief that "[t]he device of admitting past felony convictions that are not actually related to the issue of credibility is unnecessary and unfair." Cotton at 701; cf. Miller at 284–85 ("a conviction for burglary is a crime of dishonesty"). This isKRE 609(b)—and the farther away the age of the conviction is from the 10 year floor of KRE 609(b)—the stronger our conviction.

Having considered the matter, we do not believe that the "similarity" in convictions—which is more akin to a "propensity analysis"—is a proper ground upon which to weigh the probative value of the aged conviction. It is just too much like the "lustful inclination" analysis disapproved under Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985), and does not reflect well on the age analysis of the older convictions. Cf. Brown, at 203. The more attenuated the conviction, the more relevant the balance tested probative issue should be to the central issue of untruthfulness. "As a conviction recedes into the past, the value on the issue of credibility wanes proportionately, while its prejudice as to guilt is less easily dispelled." Sommers v. Commonwealth, 226 Mo.App. 172, 43 S.W.2d 879, 887 (Ky.1992) (17—18 year-old felony held error).

Ultimately, when a trial court is faced with determining the admissibility of a state conviction (significantly older than the 10 year minimum floor for KRE 609(b)), it must evaluate the nature of the crime committed and determine if that crime is one that is indicative of untruthfulness. If the trial court finds the conviction to be for a crime that reflects on the untruthfulness of the witness, then the trial court must use its discretion to further determine if the probative value of that conviction on the issue of untruthfulness substantially outweighs its prejudicial effect. Obviously, some crimes will be more probative than others—depending on the nature of the crime. And other factors, such as the value of the witness' evidence to the case, should be considered. But the ultimate answer to most KRE 609(b) questions on significantly older cases will be resolved properly by analyzing the relationship of conviction to the issue of untruthfulness along with consideration of the age of the case versus its prejudicial effect.

As the grounds weighed here in regards to its probative value dealt only with "propensity"—and this was a 19–year–old conviction—we find the KRE 609(b) balancing analysis was improper; thus there was an abuse of discretion and error; error which, under the circumstances of this case, we cannot say was harmless.

TESTIMONY REGARDING "RAPE" VIDEO

Appellant also argues the trial court abused its discretion when it allowed testimony regarding the "rape video" found on his computer.

At pretrial, the court held the video would not be admissible. However, during cross-examination, the Commonwealth asked Appellant about his use of the computer at the shop on the day of the incident. When he explained that he had used the computer to view diagrams of the car he was working on that day and later affirmed he did not think he had used the computer for any other purpose that day, the Commonwealth pounced on the Appellant's testimony and informed the court that it then intended to impeach Appellant's testimony regarding the computer usage on the day in question by pointing out the access of the "rape video."

Two theories were then offered for admitting evidence of the video. First, the evidence was admissible for impeachment purposes—Appellant testified he only used the computer for work-related activities. Second, the video demonstrated "preparation" for his sexual acts against A.J., as well as intent. Over Appellant's objection, the trial court then ruled Appellant had "opened the door" by testifying the computer was only used for business purposes. Additionally, the trial court ruled the evidence was admissible under KRE 404(b) to show "preparation" and "intent." In making its determination, the trial court concluded, however, that it would not allow the Commonwealth to play the video for the jury as it would be too prejudicial. It limited the evidence to the fact that this "rape video" had been accessed.

Thus, Detective Kevin Lamkin, the Commonwealth's computer forensic analyst, was permitted to testify that his examination of the hard drive on the computer revealed that on May 19, 2002, at 10:02 a.m., someone accessed and opened a 30–second–long movie file entitled "Asian–Two Guys Rape Japanese Girl." However, he could not testify as to who viewed the file. Interestingly enough, according to A.J.'s testimony, the video was said to have been viewed after the completion of the rapes and nearly six hours prior to the sodomy. The issue then, is whether the trial court "abused its discretion" by admitting evidence of the "rape video" at trial. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

The rules of evidence are quite clear that a trial court is free to reconsider its prior rulings on motions in limine. KRE 103(d) ends its discussion of such motions by matter-of-factly stating "Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine."

Plainly, however, the "rape video" was not admissible as evidence of "preparation or intent" as described in KRE 404(b); such a holding in matters such as this would broaden KRE 404(b) beyond recognition. Even so, if this evidence fell under the province of KRE 404(b), the Commonwealth would not have acquiesced in the Appellant's original motion to suppress in the first place. It was correct the first time—this is not proper evidence of "preparation" or "intent" What this evidence would do—is show Appellant's "lustful inclinations." InPendleton, 685 S.W.2d at 552, we held evidence tending only to prove a "lustful inclination" is not admissible.

Moreover, it has been a long-standing principle in our jurisprudence that impeachment on collateral facts is not a proper basis for admitting otherwise inadmissible evidence. "A prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment." Purcell v. Commonwealth, 149 S.W.3d 382, 397 (Ky.2004); citing Stansbury v. United States, 219 F.2d 165, 168–71 (5th Cir.1955).

"A witness may not be impeached on matters that are irrelevant or collateral to the issue being tried. Incompetent evidence cannot be made the foundation for impeachment of a witness. A witness's answers to questions relating to his previous conduct are regarded as so far collateral that they cannot be contradicted by the party cross-examining unless they go to matter which the law permits to be shown for the purpose of impairing credibility."

Id. (quoting Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, 929 (1948).

"Although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have continued to recognize the prohibition as a valid principle of evidence." Id. at 397–98, 210 S.W.2d 926 (citing Neal v. Commonwealth, 95 S.W.3d 843, 849 (Ky.2003); Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997); Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554, 563–64 (Ky.2003)).

In Purcell, this Court noted that Professor Lawson suggests that the issue is more properly decided by applying the KRE 403balancing test, i.e., weighing the probative value of the impeachment against the prejudicial effect of the evidence and its possible confusion of the issue and that it would be a rare occurrence, when the prejudicial effect of the evidence of "other bad acts" would not substantially outweigh the impeachment value of such evidence. Id. at 398 (citing Lawson, supra, § 4.05[3], at 276. Plainly, in this instance, this was a collateral matter to which the Appellant was not subject to impeachment on extrinsic evidence. Whoever did access the "rape video" apparently did so after the alleged rapes for which Appellant was acquitted, but almost six hours prior to the sodomy for which he was convicted.

We find the trial court committed error by admitting the "rape video" into evidence and it was not harmless.

A.J.'s "DIARY"

Appellant further claims the trial court erred by depriving him of the right to present a defense when it refused to permit the introduction of A.J.'s day planner/calendar or "diary" into evidence.

A.J.'s "diary" contained 63 entries made by her between January 2, 2002 and May 18, 2002. Thirty-one of the entries had to do with sexual encounters with named individuals, including entries documenting sex with multiple partners on the same day, as each of these entries were symbolized "HSW." One of the entries noted the "$" symbol.^[4]

Subsequent to the admission of the "Rape video," the appellant moved the trial court to admit the diary into evidence as it was relevant to support his contention that (1) A.J. was expecting money in exchange for sex and, thus, was a defense to the allegations of rape and sodomy to punish him for not giving her money or taking her shopping at the mall,^[5] and (2) to refute the natural tendency to believe that it would have been Appellant that accessed the "rape video"—rather than A.J. (the minor female), whose sexual proclivity appears from a review of the diary (a female child is presumed not to be sexually active—Barnett v. Commonwealth, 828 S.W.2d 361, 363 (Ky.1992)).

The trial court, however, denied Appellant's motion to admit the "diary" holding that it was irrelevant and inadmissible and did not meet any of the three exceptions in KRE 412 (the Kentucky Rape Shield Rule). The Appellant then tendered the "diary" as an avowal.

KRE 412 exists to generally prohibit admission of evidence of prior sexual conduct of a complaining witness to insure that a victim does not become the party on trial through the admission of evidence that is neither material, nor relevant to the charge made. The rule does not prohibit the introduction of relevant, probative evidence at trial, if the evidence of prior sexual conduct directly pertains to the crime with which the defendant is charged. Barnett at 363 (citing former KRS 510.145, repealed by 1990 Ky. Acts, ch. 88, § 92, eff. July 1, 1992, and Bixler v. Commonwealth, 712 S.W.2d 366 (Ky.App.1986)).

The goal of KRE 412 is to protect victims of sex crimes against embarrassing and humiliating disclosures about private sexual activities. The rule is crucial in protecting victims from being prosecuted and even persecuted by defendants who attempt to draw attention from their own alleged crimes by making the victim look like the criminal. KRE 412 permits admission of evidence of an alleged victim's past sexual history only after the proffered evidence is determined to fall under one of the three narrow exceptions toKRE 412 and after determination is made by the trial court that the prejudicial effect is substantially outweighed by the probative value, as required by subsection (c).^[6] R. Lawson, The Kentucky Evidence Law Handbook, at 168–70.

To be admissible, evidence of an alleged rape victim's behavior must be: (1) evidence of past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, i.e., the source of semen or injury; (2) evidence of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which an offense is alleged; or (3) any other evidence directly pertaining to the offense charged. KRE 412(b).

The drafters of this third exception, KRE 412(b)(1)(C), noted, "it recognizes the difficulty of anticipating every circumstance in which evidence of a prior sexual conduct may have a necessary and proper role in a case other than as evidence of an alleged victim's character." Id. at 113. "It is, in other words, a safety valve, albeit one that needs to be administered 'carefully and sparingly' [and without violating] the objective of protecting against unwarranted attacks on the character of an alleged victim." Id. at 166 (citing Evidence Rules Study Comm., Ky. Rules of Evidence—Final Draft, p. 36 (Nov.1989)).

Notably, the Federal Rape Shield Rule (FRE 412) has the same exception, yet with somewhat different language. It allows "evidence the exclusion of which would violate the constitutional right of the defendant." FRE 412(b)(1)(C). KRE 412(b)(1)(C) and FRE 412(b)(1)(C) serve essentially the same function, as the U.S. Supreme Court has held that a criminal defendant has a constitutional right to "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984). "... [R]estrictions on a criminal defendant's right to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 55–56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).

Pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, a criminal defendant is guaranteed the right not only to confront witnesses against him, but also to compel witnesses in his favor. "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988).

Olden involved a Caucasian woman allegedly raped by the defendant, who was African–American. She first reported being raped to her friend, with whom she was visiting, when dropped off at his house by the defendant. The friend, also an African–American male, had come out on his porch, just as she got out of the defendant's car.

At the time of the trial, she had separated from her husband and was living with this friend (who had also separated from his wife), and the defendant sought to introduce their co-habitation as part of his defense that she had fabricated the rape charge to protect her then future, and now present, relationship with this other man. Interestingly enough, this Court (then the Kentucky Court of Appeals) held this evidence of a fabrication was not barred by Kentucky's Rape Shield Law [then KRS 510.145 (Michie, 1985) ]. However, it was excluded by this Court upon the finding that "[t]he defendant's right to effective cross examination was outweighed by the danger that revealing [her] interracial relationship would prejudice the jury against her." Id. at 232.

In finding the exclusion erroneous, the U.S. Supreme Court stated, "While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecuting 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, ....the limitation here was beyond reason'." Id.

In finding that the error was not harmless, the Court stressed "the central, indeed crucial" role her testimony played in the prosecution, since she was the only witness/victim. Id. at 233. In addition, the Court placed great weight upon the apparent inconsistencies between the jury verdicts and the prosecution's theory of the case: "Based on the evidence at trial, the jury acquitted [another defendant] of being either a principal or an accomplice to any of the charged offenses. Petitioner was likewise acquitted of kidnapping and rape. However, in a somewhat puzzling turn of events, the jury convicted Petitioner of forcible sodomy." Id. at 230. "As demonstrated graphically by the jury's verdicts, which cannot be squared with the state's theory of the alleged crime, the state's case against Petitioner was far from overwhelming." Id. at 233.

Here, Appellant claimed that A.J. expected money or other material remuneration (at the mall) in exchange for providing him sex. He did not deny engaging in sexual activities with A.J. He consistently claimed the occasions of sexual intercourse and oral sex were consensual, stating that A.J. became angry and issued threats to accuse him of rape when she realized he was not going to "pay" or "take her to the mall." His sole defense was that A.J. was fabricating the claims against him as retribution for his not satisfying her demands. He, too, was acquitted of the rape charges, but convicted of the sodomy charge. Also a somewhat puzzling turn of events in this case.

Having reviewed the record and the "diary," we believe the facts of this case, as well as its closeness on the evidence, are such to transform A.J.'s "diary," or most of its entries,^[7] from evidence properly excluded under KRE 412, into one of the rare instances where evidence of the victim's past sexual activity is admitted under KRE 412(b)(1)(C), the residual exception clause. To hold otherwise would be a fundamental violation of the Appellant's constitutional right to confrontation and effective cross-examination.^[8]

"The Due Process Clause affords a criminal defendant the fundamental right to a fair opportunity to present a defense. Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297; Beatty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003). The exclusion of evidence violates that constitutional right when it "significantly undermine[s] fundamental elements of the defendant's defense." United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267–68, 140 L.Ed.2d 413 (1998)." Harris v. Commonwealth, 134 S.W.3d 603, 606 (Ky.2004). Thus, we believe the line of demarcation between the "right to confrontation" and the "Rape Shield rule" is crossed when the "shield" becomes a "sword."

In Anderson v. Commonwealth, 63 S.W.3d 135 (Ky.2001), we warned against excessive use of the residual exception stating, " '[t]he purpose of the Rape Shield Statute is to insure that [the victim] does not become the party on trial through the admission of evidence that is neither material[,] nor relevant to the charge made .'.... We stand by this sound principle, and by no means want to expand the law to admit more evidence than is necessary to allow a defendant a fair trial." Id. at 140; quoting Barnett at 363).

However, we cannot find the error in this case harmless for the same reasons set out in Olden.

THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO AMEND HIS GUILTY PLEA

Following the jury verdict convicting Appellant of first-degree sodomy and first-degree unlawful imprisonment and recommending a sentence of twenty-five (25) years, Appellant entered a plea of guilty on the other charge, possession of a firearm by a convicted felon. Yet later, at the sentencing hearing on November 14, 2003, counsel for Appellant moved to amend this plea of guilty to an "Alford" plea. The trial court, however, requested the motion be reduced to writing. Ultimately, after the motion to amend and the response thereto were filed, it was denied. Appellant argues the trial court erred in denying the motion.

The U.S. Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), allowed the use of a "best interest" guilty plea. When entering an "Alford" plea, the defendant acknowledges the weight of the evidence against him, yet still chooses to maintain his innocence. The impetus for entry of such a plea is hope for a lesser sentence in exchange for the entry of a plea.

The decision to accept an Alford plea in the first place is within the discretion of the trial court. Even in Alford, the U.S. Supreme Court stated:

Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have the absolute right under the Constitution to have his plea accepted by the court.... [T]he States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.

Id. at 33.

Although we do allow such pleas at the discretion of the trial court, the Kentucky Rules of Criminal Procedure do not provide for their entry.^[9] They provide for pleas of guilty, not guilty, or guilty but mentally ill.

In this case, Appellant participated in a full plea colloquy during which he waived his right to a jury trial.^[10] The Appellant "knowingly, understandingly and voluntarily" waived his right to a jury trial. He entered a guilty plea with no promise of a recommendation of a lesser sentence by the Commonwealth. More accurately, he entered an "open" and unconditional guilty plea, acknowledging to the court his guilt.

Thus, we find no error in the trial court's decision to deny Appellant's motion to amend his guilty plea to an "Alford" plea.

CONCLUSION

In that we conclude the trial court committed reversible error in admitting evidence of the 19–year–old conviction, in admitting evidence of the "rape" video, as well as in the exclusion of the "diary," the Appellant's convictions for first degree sodomy and first degree unlawful imprisonment are hereby reversed and this case is remanded to the trial court for a new trial consistent with the rulings herein.We affirm the judgment and sentencing on the possession of a firearm, subject to the trial court's re-evaluation of the plea pursuant to the rulings herein.

LAMBERT, C.J.; GRAVES, ROACH, SCOTT and WINTERSHEIMER, JJ., concur. COOPER, J., dissents by separate opinion, withJOHNSTONE, J., joining that dissent.

OPINION BY JUSTICE COOPER

CONCURRING IN PART AND DISSENTING IN PART

I concur with the majority opinion except insofar as it holds that Appellant may, upon retrial, introduce excerpts from the victim's diary showing that she engaged in other acts of consensual sex with other men in exchange for money or other remuneration.

Except for a forty-five-minute period during which Appellant left A.J. alone while he purchased some beer and delivered it to his residence, Appellant and A.J. were together at Appellant's place of business from approximately 8:00 a.m. to 4:00 p.m. on Sunday, May 19, 2002. They both testified that during the period from 8:00 a.m. until 10:30 a.m., they engaged in sexual intercourse three times, twice in the reception office and once in an upstairs office. A.J. claimed she was forcibly raped on each occasion; Appellant claimed the intercourse was consensual. Appellant testified that after their first act of intercourse, A.J. asked him if he would give her twenty-five dollars and he told her that he would (though he apparently never did). He then testified that, after the third act of intercourse, A.J. asked him to take her to the Jefferson Mall and recited a list of items that she wanted him to purchase for her. According to Appellant, he told her that he had no intention of purchasing any of those items for her.

Both parties testified that after Appellant returned from purchasing and delivering the beer, and after A.J. had called the 911 emergency operator and reported that she had been raped, A.J. performed an act of oral sodomy on Appellant. Again, A.J. claimed she was forcibly compelled to do so; Appellant claimed that A.J. initiated the contact and voluntarily performed the act without any force or threat from him. Neither testified that A.J. demanded any money or gifts before or after this incident, which occurred shortly before the police arrived and placed Appellant under arrest. Appellant was subsequently indicted for, inter alia, three counts of rape in the first degree and one count of sodomy in the first degree.

The trial court sustained the Commonwealth's objection to the introduction of excerpts from A.J.'s diaries which indicated that she had been paid for sex by other men in the past, including a man with whom she had spent the previous evening. The majority opinion holds that the excerpts were admissible because they tended to show that A.J. was a practicing prostitute who had consensual intercourse with Appellant in expectation of remuneration. However, the exception to the rape-shield rule with respect to proof of consent allows only evidence of prior sexual behavior by the victim with the accused. KRE 412(b)(1)(B). The majority opinion relies on the exception atKRE 412(b)(1)(C) ("any other evidence directly pertaining to the offense charged"). Nothing in A.J.'s diary directly pertains to the offenses charged in this case. Appellant simply wants to avoid the restriction in KRE 412(b)(1)(B) and prove consent by evidence that A.J. had engaged in prior consensual sexual conduct with other persons. This case is unlike Anderson v. Commonwealth, 63 S.W.3d 135, 140 (Ky.2001), and Barnett v. Commonwealth, 828 S.W.2d 361, 363 (Ky.1992), in which evidence of previous sexual activity with third parties was introduced to rebut the inference drawn from medical evidence of frequent sexual activity by female children, who are generally presumed not to be sexually active. Nor does the exclusion of this evidence violate Appellant's Sixth Amendment right to present a defense. "[T]he right to present relevant testimony is not without limitation. The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." ' Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973)). To the extent it holds that the Sixth Amendment guarantees Appellant the right to present evidence of A.J.'s sexual conduct with other men, the majority's analysis of KRE 412(b)(1)(C) effectively writes the rape shield rule out of the books. Most evidence of a victim's sexual activity with a third party that is precluded by KRE 412(a) would be admitted under this interpretation of KRE 412(b)(1)(C); the exception swallows the rule of inadmissibility, itself.

Where evidence excluded by rape-shield laws is offered only for the purpose of impeachment or, as here, as circumstantial evidence of consent, the defendant's interest in presenting the evidence is outweighed by the state's interest in protecting the privacy of sexual assault victims. Hammer v. Karlen, 342 F.3d 807, 812 (7th Cir.2003); Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir.1993)(rape-shield exclusion does not violate Confrontation Clause). See also Smith v. Commonwealth, 566 S.W.2d 181, 183 (Ky.App.1978)(upholding constitutionality of former KRS 510.145). The U.S. Supreme Court has held that exclusion of this type of evidence for failure to comply with a notice-hearing requirement, see KRE 412(c), does not violate a defendant's Sixth Amendment right to present a defense. In fact, Appellant was not denied the right to present his defense. He "had an opportunity to testify regarding the events of the day leading up to the rape, to argue the victim's ability to consent, and to cross-examine [the victim] regarding the events of the day."Hardaway v. McKane, 125 Fed. Appx. 955, 957 (10th Cir.2005). He was only precluded from introducing evidence regarding A.J.'s previous sexual experiences with other persons.

Regardless, under Appellant's own version of the facts, he had told A.J. that he was not going to provide her with money or gifts in exchange for sexual intercourse by approximately 10:30 a.m., after the occurrence of the alleged rapes but some five hours before the occurrence of the alleged sodomy. The diary entries were probative only as a defense to the rape charges because Appellant admits that any discussion of remuneration for sex had been terminated prior to the act of sodomy. Since Appellant was acquitted of the rape charges, the entries are now irrelevant unless the Commonwealth can re-introduce evidence of the rape allegations upon retrial.

This case is factually distinguishable from Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the case upon which the majority opinion primarily relies. In Olden, the U.S. Supreme Court held that the defendant's Sixth Amendment right to confrontation was violated when he was prevented from presenting evidence that the alleged rape victim was cohabitating with another man for the purpose of showing her motive to fabricate the accusation that the defendant had raped her. Id. at 232, 109 S.Ct. at 483.While the diary excerpts in the case sub judice tend to show that A.J. fabricated the rape charges, they do not tend to show a motive for fabricating the remaining sodomy charge.

There is no Constitutional prohibition against the admission at retrial of evidence of the three acts of sexual intercourse between Appellant and A.J. Dowling v. United States, 493 U.S. 342, 348–50, 110 S.Ct. 668, 672–73, 107 L.Ed.2d 708 (1990). Because the standard of proof is lower for admission of evidence under KRE 104(a) than for a criminal conviction, Appellant's acquittal of the three rape charges does not preclude their admission under KRE 404(b) at retrial, so long as the evidence falls within the "proper purpose" exception established by that Rule, Dowling, 493 U.S. at 348–50, 110 S.Ct. at 672–63; Hampton v. Commonwealth, 133 S.W.3d 438, 441–42 (Ky.2004), and provided the trial court admonishes the jury that Appellant has been previously acquitted of forcible rape with respect to those acts. Dowling, 493 U.S. at 345–46, 110 S.Ct. at 674–75; Hampton, 133 S.W.3d at 442.

The KRE 404(b) problem here is that evidence of the three acts of consensual sexual intercourse does not satisfy the "other purpose" requirement for admission under KRE 404(b)(1). Both parties admitted to engaging in three acts of sexual intercourse and one act of oral sodomy. Since the jury found Appellant not guilty of the rapes, they must have found that the three acts of sexual intercourse were consensual. The only remaining issue at retrial is whether the sodomy was consensual or the product of forcible compulsion. The three prior acts of consensual sexual intercourse do not tend to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" with respect to a subsequent forcibly compelled sodomy. It would only tend to prove a "lustful inclination," which is not permitted in Kentucky. Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985). If the Commonwealth attempts to claim at retrial that the three acts of sexual intercourse were forcibly compelled, it is faced not only with the trial court's admonition to the jury that Appellant was acquitted of those charges but also with the introduction of the diary excerpts, which are far more devastating to the Commonwealth's case than proof of alleged nonconsensual acts of sexual intercourse for which he has been acquitted.

Nor are the three consensual sexual acts so "inextricably intertwined" with the alleged nonconsensual sexual act as to compel admission under KRS 404(b)(2). As we noted in Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992):

[T]he key to understanding this exception is the word "inextricably." The exception relates only to evidence that must come inbecause it "is so interwoven with evidence of the crime charged that its introduction is unavoidable."

Id. at 480 (emphasis added) (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.20, at 37 (2d ed.1984)). See alsoFleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220, 221 (1940) (evidence is inextricably intertwined where "two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other"). It would be a simple (and prudent) matter for the Commonwealth to introduce all of the other evidence leading up to the alleged forcible sodomy, excluding the three acts of consensual intercourse.

In fact, Appellant is more likely to move for the introduction of evidence of consensual intercourse pursuant to KRE 412(b)(1)(B)("evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconductoffered by the accused to prove consent" ) than is the Commonwealth to move for its introduction pursuant to KRE 404(b). But if Appellant introduces evidence that the intercourse was consensual (as circumstantial evidence that the sodomy was also consensual), the diary excerpts, i.e., evidence of sex for money, remain irrelevant because their only purpose is to rebut the claim of nonconsensualsexual intercourse, not the claim of nonconsensual oral sodomy. A.J. could not have expected money or gifts in return for performing a consensual act of sodomy, since Appellant had already told her he had no intention of giving her money or gifts, and A.J. knew the police would soon arrive and arrest Appellant as a result of her 911 call charging him with rape.

Accordingly, I dissent with respect to the majority's holding that the diaries are admissible at retrial; otherwise, I concur in the majority opinion.

JOHNSTONE, J., joins this opinion.

[1] Police records show the 911 call to have been placed at 3:32 p.m.

[2] At trial, the parties stipulated that the male DNA profile from the vaginal specimen matched Appellant and that the saliva swabs from Appellant's penis matched A.J.

[3] Federal Courts, in addressing "stale convictions," have stated that such convictions should be admitted rarely and only under exceptional circumstances. Id.

[4] The March 23, 2002 entry.

[5] The 911 call was placed from A.J.'s cell phone at 3:32 p.m., and thereafter the "police rescue" occurred. However, A.J. received a four-minute call from the man she spent the night before with sometime after 10:23 a.m.; the three "rapes" were committed by approximately 9:30 a.m., yet no 911 call was placed as a result of this conversation (nor was there any independent attempt at rescue).

[6] This test is the same as that applied to KRE 609 (Appellant's 19–year–old conviction).

[7] The "burnt up my bird and buried it in the yard" entry and other similar entries of irrelevant material should be redacted.

[8] See Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution.

[9] See. RCr 812; RCr 8.08. Cf. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 549 (Ky.App.1984) (holding that criminal rules do not provide for a plea of nolo contendere).

[10] The jury was still present and the trial judge explained to Appellant that they could be brought back in to try the firearm charge. Though, it appears from the circumstances that the Appellant made the decision to enter a plea to end all of the proceedings against him out of frustration; a decision that may have been made precipitously and in the "clutch of frustration" following the other convictions; yet the standard we must following in this review is whether it was made knowingly, intelligently, and voluntarily.