Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979)(dissenting opinion)

The below excerpt is from a Maryland appellate court dissenting opinionwhere the majority reversed a rape conviction.  The majority found that there had been no evidence of resistence and that the fear of the victim was not reasonable.

The testimony of the victim was described in the opinion-

""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."

She stated that she performed oral sex and they then had sexual intercourse.[1]"

The Majority in addressing the fear of the victim wrote, 

"The State argues further that the evidence that the accused "started lightly to choke me" as well as the circumstances of being in a somewhat strange part of town late at night were sufficient to overcome the will of a normal twenty-one year old married woman. We are not impressed with the argument. When at oral argument it was pointed out to the State that the cases require that the fear must be reasonable, the appellee answered first that the cases so requiring were wrong and should be overruled and secondly, that a rapist took his victim as he found her. Thus, the argument goes, even though the victim was unreasonable in being afraid, that was the chance a man took in having intercourse with someone not his wife. In other words, in any situation where the victim testified that she consented because she was afraid, the verdict of the jury would be conclusive and all such cases should be submitted to the jury for consideration. Whatever appeal this argument might have in other cases, it has none here where there is nothing whatsoever to indicate that the victim was anything but a normal, intelligent, twenty-one year old, vigorous female."

The Maryland Supreme Court reversed the majority and did so relying heavily on the dissent's reasoning.