United States v. Clark

35 M.J. 432, 1992 CMA LEXIS 1030, 1992 WL 295208

Opinions

Opinion

CRAWFORD, Judge:

Contrary to his pleas, appellant was found guilty by a military judge of rape,¹ in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920. He was sentenced to a dishonorable discharge, confinement for 7 years, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and this was affirmed by the Court of Military Review. 32 MJ 606 (1991). We granted review to determine “whether the evidence of force and lack of consent was [legally] sufficient ... to support a finding of guilty to rape.”

I

Our standard in testing for legal sufficiency of the evidence is “whether, after reviewing 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, 2789, 61 L.Ed.2d 560 (1979). Accordingly, we will view the evidence against this standard in determining sufficiency of the evidence of force and lack of consent.

To start, we adopt the excellent recitation of facts set forth by the Court of Military Review, and for clarity, we will quote those facts pertinent to our discussion. During October 1988, Private (PVT) I attended basic training at Fort Jackson, South Carolina. Private I graduated from high school in June of 1988 and was exposed to the military environment for the first time while attending basic training at Fort Jackson. On October 27, 1988, Private I, still of trainee status, was assigned kitchen duties at the dining facility under the supervision of appellant, a sergeant first class. Prior to October 27, PVT I had never met appellant. He ordered PVT I “to clean an area where kitchen equipment was to be turned-in.” Thereafter, the following events transpired:

PVT I testified that the appellant had made personal remarks to her during the duty day to the point where she asked a fellow male trainee to assist her because the appellant both “scared” her and “he was weird.” Later, the appellant came to the area and ordered her to accompany him to a storage shed to get cleanser so the cleaning job could be done correctly. PVT I reluctantly followed the appellant outside to a shed which was out of view of anyone in the training unit.

32 MJ at 607.

Appellant is 5'8" in height and weighs approximately 210 pounds. In contrast, PVT I is 5'5" in height and weighs approximately 120 pounds. Upon reaching the shed appellant unlocked the door; motioned PVT I inside a small, pitch black room with brick walls and a metal door; entered behind her, and closed the door. Once inside, the following sequence of events unfolded:

The appellant asked, “[W]here are you,” reached for PVT I, grabbed her arm, and kissed her. PVT I did not return his kiss and “stiffened her body.” The appellant then unbuttoned his trousers, exposed his penis, took PVT I’s hand and placed it on his penis, and rubbed it back and forth. He then directed her to take off her trousers. She unbuttoned only the top two buttons, hoping that he would be unable to get her trousers down and would stop. But he was able to pull her trousers down below her buttocks and attempt intercourse. Being unsuccessful, he ordered her to turn around and bend over. The appellant then penetrated her vagina and continued intercourse for “what seemed like forever.” During the intercourse the appellant grabbed PVT I’s breast roughly.

At this point, PVT I made her first verbalization, telling “the appellant to stop by stating, ‘[SJomeone may come.’ The appellant withdrew, checked outside the door, and let PVT I pull up her trousers and leave.” 32 MJ at 608.

PVT I obediently returned to her work station where the same male trainee who had previously assisted her noticed that she was crying and almost hysterical. The following events occurred after the rape:

Later, the appellant approached PVT I and told her not to tell anyone what had happened or they both would be in trouble, and that the next time she was on KP [kitchen police] they would have sex again. Despite this caution and because of the repeated questioning by a friend at the billets upon that friend’s discovery of red marks on PVT I’s chest and back, PVT I finally reported the rape. A subsequent medical exam confirmed that she had had sexual intercourse but did not substantiate the testimony of two female trainees concerning the red marks. Thereafter, PVT I refused to go to the mess hall to eat until ordered to do so. She also experienced nightmares that required the comfort of her friends in the billets.

32 MJ at 608 (footnote omitted). Although “appellant’s version of what transpired is starkly different,” he did admit to having sex with a trainee to the civilian supervisor at the dining facility. Id. at 608.

II

The elements of rape as set forth in the Manual for Courts-Martial, United States, 1984, are that: (1) “the accused committed an act of sexual intercourse with a certain female”; (2) “the female was not the accused’s wife”; and (3) “the act of sexual intercourse was done by force and without her consent.” Para. 45b(l), Part IV. The only challenged element is the third one, and the challenge involves an interpretation of the term “by force and without her consent.”

The Manual for Courts-Martial explains the term as follows:

Force and lack of consent are necessary to the offense. Thus, if the female consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a woman in possession of her mental and physical faculties fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the female is unable to resist because of the lack of mental or physical faculties.In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a woman gave her consent, or whether she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm.

Para. 45c(l)(b).

We agree with the Court of Military Review that force and lack of consent could be found by a reasonable trier of fact beyond a reasonable doubt, but we disagree as to the legal theory which applies.

The court below found actual force for three reasons. First, because appellant ordered PVT I to accompany him, an order which was her duty to obey; second, because he confined . PVT I in a small shed with brick walls and a metal door, in an isolated area; third, because he “grabbed” her and kissed her, taking her hand and rubbing it on his penis, and “grabbed her breast roughly” as the intercourse progressed, which was evidenced by the red marks observed on her chest and in the area of her back where her bra strap was located.

The court below also found that “it was reasonable for PVT I to fear for her life, to have a reasonable fear of grievous bodily injury, and to believe that resistance would be futile,” 32 MJ at 610, because “PVT I testified that she was ‘scared’ of the appellant and that she passively resisted because to do more would have caused the appellant to hurt her”; because “PVT I was ordered by her superior noncommissioned officer ... to accompany him and he directed her movements”; because “appellant made sure that the place of the rape was isolated and out of the view of other trainees”; because the rape occurred in “a ‘pitch’ black room built of bricks with a metal door”; and because appellant is “a large man who positioned himself between the door and his victim, and he ‘grabbed her’ and kissed her.” Id. at 609-10.

There are numerous cases supporting the legal sufficiency of these findings. See generally United States v. Bradley, 28 MJ 197, 200 (CMA 1989) (“We hold ... that this military relationship ... created a unique situation of dominance and control where explicit threats and display of force by the military superior were not necessary.”); United States v. Williamson, 24 MJ 32, 34 (CMA 1987) (“Resistance is not required [for rape] ... when it would be futile; the totality of the circumstances, including the level of resistance, are to be considered by the factfinders in determining whether consent was lacking.”); United States v. Hicks, 24 MJ 3, 6 (CMA 1987), cert. denied, 484 U.S. 827, 108 S.Ct. 95, 98 L.Ed.2d 55 (1987) (“The existence and reasonableness of the victim’s fear of bodily harm under the totality of the circumstances are questions of fact.”); United States v. Jackson, 25 MJ 711 (ACMR 1987) (lack of consent found in victim’s evasive actions to advances by platoon sergeant who was much larger physically than victim), pet. denied, 27 MJ 1 (1988); United States v. McFarlin, 19 MJ 790, 794 (ACMR) (lack of consent found in the “passive acquiescence prompted by appellant’s superior rank and position”), pet. denied, 20 MJ 314 (CMA 1985).

These findings do not, however, show that actual force was used in the rape, but rather they are pertinent to an application of the doctrine of constructive force. In those statutes, like the Uniform Code of Military Justice, where force is necessary to prove lack of consent, the emphasis of an inquiry into actual force has traditionally been defined in terms of the conduct of the victim, the definition being based on the amount of resistance exerted during the attack. See generally, Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L.Rev. 1500 (1975).²

The doctrine of constructive force is used in those situations when no force is needed to accomplish the rape beyond what is involved in the act of intercourse itself because the victim does not, or ceases to, resist because of a reasonable fear of death or grievous bodily harm. In order to apply the doctrine of constructive force, a court must find that “resistance would have been futile,” resistance was “overcome by-threats of death or great bodily harm,” or “the female is unable to resist because of the lack of mental or physical faculties.” Para. 45c(l)(b).

Use of the doctrine of constructive force to satisfy an element of the crime of rape dates back at least as far as 1917, when the Manual for Courts-Martial provided: “Force, actual or constructive, and a want of consent are indispensable in rape, but the force involved in the act of penetration is alone sufficient force where there is in fact no consent.” Manual for Courts-Martial, United States, 1917, at 251: Ninety-Second Article of War, Part II (emphasis added). Indeed, Colonel Winthrop discussed the topic of force necessary to accomplish rape in 1886, saying: “It is not essential that the force employed consist in physical violence; it may be exerted in part or entirely by means of other forms of duress, or by threats of killing or of grievous bodily harm or other injury, or by any moral compulsion.” W. Winthrop, Military Law 971 (1886), reprinted in W. Winthrop, Military Law and Precedents 677-78 (2d ed. 1920 Reprint). The cases cited by Winthrop in support of this proposition include: Pleasant v. State, 13 Ark. 374 (1853) (“If the woman submitted from terror, or the dread of greater violence, the intimidation becomes equivalent to force.”) and Strang v. People, 24 Mich. 1 (1871) (“If the jury are ‘satisfied that her will was overcome by fear of the accused,’ a conviction will be proper.”).³ Winthrop (1886), supra at 971 n.4; (1920) 678 n.82.

We are satisfied that the doctrine of constructive force applies in this case due to the specific findings of fact the court below used to find actual force, i.e., that it was reasonable for PVT I to fear for her life, to fear grievous bodily injury, and to believe that resistance would be futile.

We join wholeheartedly in the holding of the court below “that the appellant cannot create by his own actions an environment of isolation and fear and then seek excusal from the crime of rape by claiming the absence of force,” 32 MJ at 610, especially where, as here, passive acquiescence is prompted by the unique situation of dominance and control presented by appellant’s superior rank and position.

The decision of the United States Army Court of Military Review is affirmed.

Judge COX concurs.

1 . The charge sheet reflects "None" in the section for "instructions.” In a capital case this means the referral is capital. There must be a specific statement in the instructions that the case is referred as noncapital for the death penalty to be removed as the maximum punishment. Because the military judge specifically stated his "understanding] the case has been referred as a noncapital case," trial by judge alone was permissible. See Art. 18 (3d sent.). Uniform Code of Military Justice, 10 USC § 818.

2 . The Model Penal Code [hereinafter MPC] sets forth a comprehensive restatement of the crime of rape which shifts the focus from the victim’s conduct to the amount of force or coercion applied by the assailant. In order to be guilty of rape in the first or second degree, a showing must be made that the assailant ”compeI[led] her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.” In order to be guilty of rape in the third degree (gross sexual imposition), a showing must be made only that the assailant ”compel[led] her to submit by any threat that would prevent resistance by a woman of ordinary resolution.” American Law Institute, Model Penal Code and Commentaries, Part II, Rape and Related Offenses § 213.1(l)(a) and (2)(a) at 274-75 (1980).

The exception to this general rule is found in the drafters’ comment that ”compel[s] to submit” does require more than "a token initial resistance." MPC § 207.4, Comment at 246-47 (Tent. Draft No. 4, 1955). Nevertheless, in light of the mandate of Section 1.02(3), MPC, Part I at 13 (1985), that Code provisions should be construed not restrictively but "according to the fair import of their terms,” the term "threat” is encompassed by an implied threat inherent where a woman is trapped in a dangerous situation of the accused’s making.

3 . Rather than “resort[ing] to the fiction of 'constructive force,’ ” Prof. Perkins suggests: “A better analysis is to recognize that the requirement of force is simply a means of demonstrating that the unlawful violation of the woman was without her consent and against her will.” R. Perkins & R. Boyce, Criminal Law 211 (3d ed. 1982).