How to Get Away with Crime

By Shambhavi Tiwari

“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 again, ‘If I do what you want, will you let me go?’ And he said, yes. So, at that time, I proceeded to do what he wanted me to do.”[1] And just like that, she gave her perpetrator a valid defense and several others the possibility of getting away with crime, provided one should know how to play by the rules of loopholes.

Loopholes in Criminal Law

More often than not, the court oscillates between the appeal to the demands of the carefully formulated legal principles and the appeal to the self-evident specific situations before it.[2] State v. Rusk[3] is one such oscillation wherein the case flaunts the perpetrator right in front of the court. The jury knows it, the judge knows it, you and I know it, but the evidence is not enough, and therefore, the court of special appeals reversed the conviction, allowing him to parade his undue victory. It concluded that in view of the prevailing law, “insufficient evidence of rusk’s guilt had been adduced at trial to permit the case to go to the jury.”[4] Moreover, it also exhibits that criminal law cannot neglect the moral aspect of society, which should be projected in its legal decisions.

Rusk saw an inevitable end that a criminal of his kind, living in denial until the very end, should. Moreover, after serving his time for rape, he had additional convictions, and just three months before his death, he was arrested for domestic assault.[5] Looking back in time, it is appreciative that the court eventually convicted the perpetrator. In the face, justice seems to be served, but the principal theme was camouflaged all along. Instead of deterrence, this case became a flashpoint for criminals and lawyers defending them to manipulate the law, making the court of justice perverse to the victims of vague language.

In Consequence, “several jurisdictions still follow Rusk’s approach and require some “reasonable resistance” by the victim as proof for lack of consent unless the defendant’s threat prevented her from resisting.”[6] Consent being the fundamental element in charge of rape, the problem is in the vague language of utmost resistance at the victim’s end. For instance, in the case mentioned earlier, Rusk claimed that the victim’s verbal resistance was no resistance.[7] The Rusk dissent could not comprehend “how a woman could participate in sexual activities and not be willing.”[8] In another case, the court elaborated that “consent given however reluctantly at any time prior to penetration deprives the subsequent intercourse of its criminal character.”[9] Sadly, the case surfaces law’s unrealistic expectation from rape victims to be “reasonable” – in effect, one who does not scare easily, one who does not feel vulnerability, one who is not passive, one who fights back and not cries.”[10] Moreover, the victim must further bear the burden to prove her resistance to the same act that violated her being and cannot be compensated.

Moreover, force is another personal constraint that can under include or over include, allowing the perpetrator to manipulate to his advantage. For example, in the current case, the court of special appeal considered choking to not have any persuasive significance as she was able to talk.[11] Furthermore, in the case of People v. Evans, the court suggested that force may be in the eye of the beholder – that woman might find some behavior threatening those men would not and proposed that instead of controlling men’s behavior, a woman’s perspective ought to be controlled.[12] Similarly, “reasonable fear” is another subjective element to which law has not given a universal boundary. Therefore, it is challenging for the court to convict a “rape defendant who takes advantage of a victim’s unreasonable fear of violence.”[13] All the more because the law-making authority is still fixated on leveling the reasonability of a woman’s consent with the perpetrator’s actions. Therefore, the reasonableness of the comprehension of consent perceived by rape defendants is still debatable.

Conclusion

The Rusk dissents surface the male perspective on how women should react to unwanted sex.[14] Rape laws, in particular, are standing on a dangerous stripe, considering the majority of the total judges on the trial court to the court of appeals were not satisfied with the evidence and thought it was not enough to convict.

It must be noted that the court is under a duty to consider logical precautions and to trust rigid principles regardless of specific consequences, leading to inhuman absolutism. Unfortunately, however, this consideration has led to manipulation in a way that it carves out morality from criminal law. Moreover, such manipulation renders no deterrence value. In fact, it provides relaxation to individuals to think about the consequences after the deed is done. Therefore, there is a heavy possibility that the whole point of criminal law will break down if the court fails to fill the cracks in the law and would instead teach them how to get away with crime.

 

[1] State v. Rusk, 424 A.2d 720, 722 (Md. 1981).

[2] Morris R. Cohen, Moral Aspects of Criminal Law, 49 The Yale Law j. 6, (April, 1940), available at https://openyls.law.yale.edu/bitstream/handle/20.500.13051/12937/55_49YaleLJ987_April1940_.pdf?sequence=2&isAllowed=y

[3] State, 424 A.2d at 722.

[4] Stephen A. Saltzburg et al., Criminal Law Cases and Materials 485 (4^Th Ed. 2017).

[5] Jeannie Suk, “The Look in his Eyes”: The story of Rusk and Rape Reform, Foundation Press 5, 173 (January 1,2010),   available at https://ssrn.com/abstract=1546602

[6] Saltzburg et al., Supra. at 491.

[7] State, 424 A.2d at 727.

 

[8] State, 424 A.2d at 734.

[9] Saltzburg et al., Supra. at 487.

[10] Id. at Note 5.

[11] See Saltzburg et al., Supra. at 489.

[12] See Saltzburg et al., Supra. at 494

[13] Salsman v. Commonwealth, 565 S.W.2d 638, 641 (Ky. Ct. App. 1978).

[14] Id. at Note 5.