Supreme Court, New York County, New York,
Trial Term, Part 34.
The PEOPLE of the State of New York
v.
Martin EVANS, a/k/a Martin Sage, Defendant.
May 1, 1975.
Prosecution was instituted on charge of
first-degree rape, together with other charges. The Supreme Court, New York County, Edward J. Greenfield, J.,
held that court, as trier of facts, could not say beyond reasonable doubt that
guilt of defendant had been established with respect to crime of rape in first
degree, where statements and words which purported to constitute threats were
susceptible of diverse interpretations and could be consistent with either
guilt or innocence; that where defendant had entered dwelling of another
without permission or authority, defendant could not be found guilty on charge
of burglary in second degree, since there was no proof that illegal entry was
for purpose of committing a crime, but he was found guilty of lesser included
offense of criminal trespass in second degree; and that defendant who, after having been arrested for a felony, escaped from
custody of police officers was guilty of crime of escape in second degree,
notwithstanding that defendant was acquitted of charges for which he was
arrested.
Judgment accordingly.
*1089 **913 Robert M.
Morgenthau, Dist. Atty., by Jeffrey S. Rovins, New York City, for the People.
**914 James Vinci, Legal Aid Soc.,
Howard Meyer, New York City, Trial Counsel,
for defendant.
EDWARD J. GREENFIELD, Justice:
The question presented in this case is
whether the sexual conquest by a predatory male of a resisting female
constitutes rape or seduction.
In making the distinction, we must deal with
patterns of behavior which have been exhibited by aggressive males towards
gentle or timid or submissive females, the broad outlines of which have been
similar for hundreds or maybe thousands of years, but the particulars of which
vary markedly in individual cases.
It is a fact, I suppose, that since before
the dawn of history men with clubs have grabbed women, willing or unwilling, by
*1090 the hair, to have their way with them. Techniques have become more varied and more subtle with the
years.
As we have become more civilized, we have
come to condemn the more overt, aggressive and outrageous behavior of some men
towards women and we have labelled it 'rape.'
We have attempted to control or deter it by providing for extremely
heavy sentences, second to and, in some jurisdictions, equalled by the
penalties set by the law for murder.
At the same time we have recognized that
there are some patterns of aggression or
aggressive male sexual behavior toward females which do not deserve such
extreme penalties, in which the male objective may be achieved through charm or
guile or protestations of love, promises or deceit.
Where force is not employed to overcome
reluctance, and where consent, however reluctant initially, can be spelled out,
this we label 'seduction,' which society may condone, even as it disapproves.
There is some conduct which comes close to
the line between rape and seduction.
This is such a case.
Since a jury has been waived, this Court is
called upon to scrutinize the conduct involved and to draw the line between the
legally permissible and the impermissible and to determine on which side of the
line this conduct falls.
Rape is defined in our Penal
Law, Section 130.35, subdivision 1, as follows:
'A male is guilty of rape in the first degree when he engages in sexual
intercourse with a female: 1. By
forcible compulsion.'
Rape can also be premised upon other
conditions which would indicate the incapacity of a female to give consent
either in actuality or as a matter of law.
We are concerned here with the first subdivision, sexual intercourse by
forcible compulsion. That is the
essence of the crime.
**915 Forcible compulsion is defined
in Section
130.00 subdivision 8, of the Penal Law as
'physical force that overcomes earnest resistance; or a threat, express or
implied, that places a person in fear of immediate death or serious physical injury to himself or another
person, or in fear that he or another person will immediately be kidnapped.'
Rape, though it sometimes may be abetted by
other females, appears to be exclusively a proscribed activity for males.
Seduction, on the other hand, may be freely
indulged in by both sexes. It involves
allurement, enticement, or persuasion, *1091 to overcome initial unwillingness
or resistance. Its ends may be achieved
by fair means or foul, but seduction eschews the crudities of force and
threats. In which category does
defendant's conduct fall?
In answering that inquiry, and based upon the
testimony in this case, the Court first makes the following findings of fact:
facts
The defendant, a bachelor of approximately
thirty-seven years of age, aptly described in the testimony as 'glib', on July
15, 1974 met an incoming plane at LaGuardia Airport, from which disembarked
Lucy Elizabeth Peterson, of Charlotte, North Carolina, a twenty-year-old
petite, attractive second-year student at Wellesley College, an unworldly girl,
evidently unacquainted with New York City and the sophisticated city ways, a
girl who proved to be, as indicated by the testimony, incredibly gullible,
trusting and naive.
The testimony indicates that the defendant
struck up a conversation with her, posing as a psychologist doing a magazine
article and using a name that was not his, inducing Miss Peterson to answer
questions for an interview.
The evidence further shows that the defendant invited Miss
Peterson to accompany him by automobile to Manhattan, her destination being
Grand Central Station. They They were accompanied
in the automobile by other persons, some of whom were introduced by the
defendant as colleagues on a professional basis. But it appears that a funny thing happened on the way to the
station. There were numerous detours before Beth Peterson ever found her way to
Grand Central Station. First, they were
taken to an apartment on the east side. Some of the party were left there.
Then the evidence indicates that this
defendant and a girl named Bridget took Miss Peterson to an establishment
called Maxwell's Plum, which the defendant explained was for the purpose of
conducting a sociological experiment in which he would observe her reactions
and the reactions of males towards her in the setting of a singles bar. After several hours there, in which Miss
Peterson evidently was still under the belief that her stopping for a drink at
Maxwell's Plum was part of this psychological and sociological experiment, she
was persuaded to accompany the defendant to the west side, upon the **916
defendant's explanation that he was there going to pick up his automobile and
drive her to Grand Central Station.
Instead of going to the automobile, she was
induced to come *1092 up to an apartment on the fourteenth floor, which
the defendant explained was used as one of his five offices or apartments throughout
the city; and Miss Peterson, still believing
that the defendant was in fact what he purported to be, went up and accompanied
him there. That apartment, Apartment
14--D, at 1 Lincoln Plaza, was in truth and in fact the apartment of one Heinz
Patzak, who ran the Austrian National Tourist Bureau and who at that time was
in Austria. Mr. Patzak has testified
that he never had given approval or permission for the defendant to enter, use
or occupy that apartment.
Miss Peterson came to the apartment and her
questions as to the existence of photographs of children, a crib, stuffed
animals and toys, were readily explained away by the defendant as being
connected with his treatment of patients as a psychologist, the explanation of
the crib and the toys being that there were used for the purposes of primal
therapy to enable his patients to associate with their childhood years more
readily. In the apartment the
psychological interviewing continued, the defendant having explained to Miss
Peterson that he was searching for the missing link between the 'girl-woman'
and the 'woman-girl.' Miss Peterson,
who was then working in a psychiatric branch of New York Hospital, Cornell
Medical School, in White Plains, and who had some training in psychology,
believed that all of this legitimately related to a psychological research
project which the defendant was conducting.
During the course of the interview in the
apartment the defendant probed Miss Peterson's life and she had, during the
course of their conversation together, made a revelation of her prior
intimacies and her feelings, and her experiences with respect to various people. In the apartment she was asked to
participate in an adjective word game, applying five adjectives to certain
designated persons, including herself and the defendant.
She had been there for one to two hours when
the defendant made his move and pulled her on to the opened sofa-bed in the
living room of that apartment and attempted to disrobe her. She resisted that, and she claims that as
articles of clothing were attempted to be removed she would pull them back on
and ultimately she was able to ward off these advances and to get herself
dressed again. At that point, the
defendant's tactics, according to her testimony, appeared to have changed.
*1093 First, he informed her of his
disappointment that she had failed the test, that this was all part of his
psychological experiment, that, in fact, this was a way in which he was trying
to reach her innermost consciousness, one of the ways in which that could be
done. Then, **917 after
expressing disappointment in the failure of this psychological experiment, he
took steps to cause doubt and fear to arise in the mind of Miss Peterson. He said, 'Look where you are. You are in the apartment of a strange
man. How do you know that I am really
who I say I am? How do you know that I
am really a psychologist?' Then, he
went on and said, 'I could kill you. I
could rape you. I could hurt you
physically.'
Miss Peterson testified that at that point
she became extremely frightened, that she
realized, indeed, how vulnerable she was.
The defendant did not strike her, did not beat her, he exhibited no
weapons at the time, but he made the statement, 'I could kill you; I could rape
you.'
Then there was yelling and screaming, further
to intimidate the defendant, and then an abrupt switch in which the defendant
attempted to play on the sympathy of Miss Peterson by telling her a story about
his lost love, how Miss Peterson had reminded him of her, and the hurt that he
had sustained when she had driven her car off a cliff. Obviously, Miss Peterson's sympathy was
engaged, and at that time acting instinctively, she took a step forward and
reached out for him and put her hand on his shoulders, and then he grabbed her
and said, 'You're mine, you are mine.'
There thereupon followed an act of sexual intercourse, an act of
oral-genital contact; a half-hour later a second act of sexual intercourse, and
then, before she left, about seven o'clock that morning, an additional act.
The sexual intercourse appears to be
corroborated by the findings of the laboratory confirmation of seminal fluid on
the underclothing which she had worn at the time.
The testimony indicates that during these
various sexual acts Miss Peterson, in fact, offered little resistance. She said that she was pinned down by the
defendant's body weight, but in some manner all her clothing was removed, all
his clothing was removed, and the acts took place. There was no torn clothing, there
were no scratches, there were no bruises.
Finally, at approximately seven a.m.
Miss Peterson dressed and left the apartment. She says that the defendant acknowledged to her that he was aware
that it had been against her will, *1094 but he nevertheless gave her
three telephone numbers. Miss Peterson
then returned to White Plains, where later that day she recited some of the
events to a fellow-worker, fellow-worker, and then to a roommate. Ultimately
she reported the facts to the New York City Police and to the Westchester
County Sheriff's office, resulting in her being taken to New York City by
personnel from the Westchester County Sheriff's office where, at the Gulf &
Western Building at Columbus Circle they saw the defendant emerging from an
elevator. Despite her identification of
him at that time the defendant initially denied that his name was Marty, that
he knew Miss Peterson, or that he had had any involvement with her in any way.
**918 After he had been placed under
arrest in a coffee shop of the Mayflower Hotel, and they had proceeded to the
building at No. 1 Lincoln Plaza, the defendant began to make partial admissions
as to his identity, his occupation of Apartment 14--D at No. 1 Lincoln Plaza,
his knowledge of Miss Peterson and ultimately the fact that he had had sexual
intercourse with her, which he claimed was consensual and a matter of mutual
enjoyment. He further told the police
officers that the whole psychology bit was a 'game that he played with girls'
heads.'
The testimony further indicates that after he had been placed
under arrest, and while he was in custody, he escaped from the police car in
which he had been placed, and that Detective Kelleher chased him in and around
the streets and up 15 flights of a building, where he ultimately located Evans
on a water tower. The explanation given
to Detective Magnusson was that he was looking for a lawyer.
opinion
Those being the facts, the Court arrives at
the following conclusions:
The Court finds that the testimony of Beth
Peterson was essentially credible testimony.
The Court finds from the story which she has narrated that the defendant
was a person who was crafty, scheming, manipulative, and ever ready with
explanations.
[1] From the testimony which has been given there are some
factors which tend to point toward guilt and some towards innocence. As factors indicating guilt are the
assumption of the false identity by the defendant, his not giving his true
name, his denial to the police when first confronted of what his name was, and
his denial of any knowledge of Miss Peterson, which denials he ultimately
retracted. Then, of course, there is
the evidence about flight which is always *1095 evidence that can be
considered as evincing some consciousness of guilt. On the other hand, there are some factors pointing to innocence
on the part of the defendant, and a lack of criminal culpability on his
part. The fact that Miss Peterson had
no bruises or scratches, no torn clothing, that
she had been allowed to proceed from the apartment without any further threats
or concealment as to location. The fact
that she was given phone numbers by the defendant which made it relatively easy
to trace his location and whereabouts; the fact that he attempted to call her
on several accasions after she had left the apartment; and the fact that he had
continued in his prior haunts at the Gulf & Western Building and at No. 1
Lincoln Plaza. From all this, the Court concludes that the defendant inveigled
Miss Peterson, deceived her, put her on, and took advantage of her.
[2] The question is whether having had sexual intercourse by
the same means described constitutes rape in the first degree. The essential element of rape in the first
degree is forcible compulsion. The
prevailing view in this country is that there can be no rape which **919
is achieved by fraud, or trick, or stratagem.
75 C.J.S. Rape s 16; Annotation, 91 A.L.R.2d 593. Provided there is
actual consent, the nature of the act being understood, it is not rape, absent
a statute, no matter how despicable the fraud, even if a woman has intercourse
with a man impersonating her husband (Lewis v. Alabama, 30 Ala. 54); or if a
fraudulent ceremony leads her to believe she is legally married to a man
(Alabama v. Murphy, 6 Ala. 765), (contra if an explicit statute to that effect
exists, e.g., State
v. Navarro, 90 Ariz. 185, 367 P.2d 227, 91 A.L.R.2d 586) or even if a doctor persuades her that sexual intercourse
is necessary for her treatment and return to good health. Don Moran
v. People, 25 Mich. 356; Commonwealth
v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, 70 A.L.R.2d 814, cert. den. 359
U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032. 'Fraud cannot be allowed to supply the place
of the force which the statute makes mandatory. Mills
v. U.S., 164 U.S. 644, 648 (17 S.Ct. 210, 41 L.Ed. 584).' Id., p. 822.
[3] It should be noted that seduction, while not considered to
be a criminal act at common law (79 C.J.S. Seduction s 31), has been made a
criminal offense by statute in some jurisdictions. In seduction, unlike rape, the consent of the woman, implied or
explicit, has been procured, by artifice, deception, flattery, fraud or
promise.
[4] The declared public policy of this state looks with
disfavor on actions for seduction since the civil action was abolished *1096
more than forty years ago, CPA ss 61--b, 61--d; now Civil
Rights Law, s 80--a. The statute did not repeal any Penal Law provisions (CPA ss
61--h, 61--i, now Civil
Rights Law s 84), but there are no presently
existing penal sanctions against seduction.
The law recognizes that there are some crimes where trickery and deceit
do constitute the basis for a criminal charge.
Since the common law, we have recognized the existence of larceny by
trick. But of course, for a larceny
there has to be a taking of property of value.
I do not mean to imply that a woman's right to her body is not a thing
of value, but it is not property in the sense which is defined by the law.
[5] It is
clear from the evidence in this case that Beth Peterson was intimidated; that
she was confused; that she had been drowned in a torrent of words and perhaps
was terrified. But it is likewise clear
from the evidence that the defendant did not resort to actual physical
force. There was "no act of
violence, no struggle, no outcry, and no attempt to restrain or confine the
person . . . which constitute the usual . . . and essential evidence' of
rape.' Commonwealth v. Goldenberg,
supra, citing Commonwealth
v. Merrill, 14 Gray (Mass.) 415, 417. The restraint which was imposed upon Miss
Peterson was a restraint imposed by his body weight, which would be the normal
situation in which any sexual contact would be achieved. Miss Peterson manifested little or no
resistance. She indicated at **920
some point she kicked. I asked her what
she was doing with her arms and hands at the time. The answers indicated that
it was not very much. Now, that can be
understandable. A woman is not
obligated to resist to the uttermost under all circumstances, when her will to
resist has been paralyzed by fear and by threats. That is why the law recognizes the existence of a threat as being
the equivalent of the use of actual force.
As stated in People
v. Connor, 126 N.Y. 278, 281, 27
N.E. 252, 253, an ancient but still followed
case, in the Court of Appeals:
'The extent of the resistance required of an assaulted
female is governed by the circumstances of the case, and the grounds which she
has for apprehending the infliction of great
bodily harm.
'When an assault is committed by the sudden and unexpected
exercise of overpowering force upon a timid and inexperienced girl, under
circumstances indicating the power and the will of the aggressor to effect his
object, and an intention to use any means necessary to accomplish it, it would
seem to present a case for a jury to say whether the fear naturally inspired by
such circumstances had not taken away or impaired *1097 the ability of
the assaulted party to make effectual resistance to the assault.'
[6] Whether resistance
was useless under the prevailing circumstances is a always a question for the
trier of facts. People v. Yannucci, 483
N.Y. 546, 550, 29
N.E.2d 185; People
v. Dohring, 59 N.Y. 374, 382.
So the question
here is not so much the use of force, but whether threats uttered by the
defendant had paralyzed her capacity to resist and had, in fact, undermined her
will. Now, what was it the defendant
said? He said, 'Look where you
are. You are in the apartment of a
strong man. How do you know that I
really am who I say I am? How do you
know that I am really a psychologist?
I could kill you. I could rape
you. I could hurt you physically.' Those words, as uttered, are susceptible to
two possible and diverse interpretations.
The first would be in essence that--you had better do what I say, for
you are helpless and I have the power to use ultimate force should you
resist. That clearly would be a threat
which would induce fear and overcome
resistance. The second possible meaning
of those words is, in effect, that--you are a foolish girl. You are in the apartment of a strange
man. You put yourself in the hands of a
stranger, and you are vulnerable and defenseless. The possibility would exist of physical harm to you were you
being confronted by someone other than the person who uttered this statement.
[7][8] Of course, it is
entirely possible that Miss Peterson, who heard the statements, construed that
as a threat, even though it may not have been intended as such by the person
who uttered those words. The question
arises as to which is the controlling state of mind--that of a person who hears
the words and interprets them as a **921 threat, or the state of mind of
the person who utters such words. It
appears to the Court that the controlling state of mind must be that of the
speaker. [FN*] She, the
hearer, may, in fact, take the words as a threat and be terrified by them. Sometimes that may be reasonable under all
the circumstances. Sometimes it may be
a rather hysterical reaction to words which would not justify the induction of *1098
that terror. But this being a criminal
trial, it is basic that the criminal intent of the defendant must be shown
beyond a reasonable oubt. It is his
intent when he acts, his intent when he speaks, which must therefore be
controlling. And so, if he utters words
which are taken as a threat by the person who hears them, but are not intended
as a threat by the person who utters them, there would be no basis for finding
the necessary criminal intent to establish culpability under the law.
FN* On the same date
as this decision the press reported a decision by the British House of Lords,
holding that there could be no conviction of rape if the accused really
believed that there was consent, despite the vociferous protest of the woman,
when he had been told beforehand that she preferred intercourse to be
accomplished over her vehement protests.
The principle, of course, is that the subjective state of mind of the
defendant controls in determining criminal intent.
[9][10] So where a statement is ambiguous, where the words and the
acts which purport to constitute force or threats are susceptible of diverse
interpretations, which may be consistentwith either guilt or innocence, the
Court, as the trier of the facts, cannot say beyond a reasonable doubt that the
guilt of the defendant has been established with respect to the crime of rape.
The words which were uttered both as to what the defendant could do, 'I could
kill you. I could rape you.' and
subsequent words that he was going to do to the complainant what his lost love
had done to him--the Court finds are ambiguous. They were not accompanied by violence. They were not accompanied by a demonstration of the intention to
carry out the threats. There was no
beating. There was no weapon
displayed. There was a statement as to
a possibility, a statement of
vulnerability. The Court finds it
cannot conclude that there was the utterance of a threat of such a nature as to
enable the Court to find the defendant guilty of the crime of rape in the first
degree beyond a reasonable doubt. Since
the Court, therefore, can find neither forcible compulsion nor threat beyond a
reasonable doubt, the defendant is found not guilty on the charges of rape,
sodomy and unlawful imprisonment.
Now, acquittal on these charges does not
imply that the Court condones the conduct of the defendant. The testimony in the case reveals that the
defendant was a predator, and that naive and gullible girls like Beth Peterson
were his natural prey. He posed. He lied.
He pretended and he deceived. He
used confidences which were innocently bestowed as leverage to effect his
will. He used psychological techniques
to achieve vulnerability and sympathy, and the erosion of resistance. A young and inexperienced girl like Beth
Peterson was then unable to withstand the practiced onslaught of the
defendant. **922 The defendant
apparently got his kicks through the exercise of these techniques. He
apparently spurned the readily available *1099 women, the acquiescent
women, like Bridget, who was living in the same apartment. To him, the game was worth more than the
prize. He boasted to the police that
this was a game he played with girls' heads.
The Court finds his conduct, if not criminal, to be reprehensible. It was conquest by con job. Truly, therefore, this defendant may be
called 'The Abominable Snowman.'
So bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a
line, to continue the attempt, not to take no for a final answer, at least not
the first time. But there comes a point
at which one must desist. It is not
criminal conduct for a male to make promises that will not be kept, to indulge
in exaggeration and hyperbole, or to assure any trusting female that, as in the
ancient fairy tale, the ugly frog is really the handsome prince. Every man is free, under the law, to be a
gentleman or a cad. But take heed. Violence, force and threats are totally out
of bounds. Their employment will
transform a heel into a criminal.
[11] While the Court must conclude that the defendant's conduct
towards Miss Peterson cannot be adjudged criminal so as to subject him to the penalty
of imprisonment for up to twenty-five years, the Court finds, on the undisputed
facts, that defendant did enter Apartment 14--D, at No. 1 Lincoln Plaza, the
dwelling of Heinz Patzak and his family, illegally and without permission or
authority. There being no proof that
the illegal entry was for the purpose of committing a crime, the defendant is
found not guilty of the charge of burglary in the second degree. But he is found guilty of the lesser
included offense of criminal trespass in the second degree, pursuant to Section
140.15 of the Penal Law, under Indictment No.
3861 of 1974.
[12] Further, the evidence clearly establishes that the
defendant, after having been arrested for a felony, escaped from the custody of
the police officers, and he is found guilty
of the crime of escape in the second degree, under Section
205.10 of the Penal Law.
It may be ironic that the defendant, having been acquitted of the charges for which he was arrested, is found guilty of attempting to flee from the possibilities of having to face up to the charge. But the facts are clear, and whatever consequences flow from that fact will flow. The defendant fancied himself to be terribly clever, but, as frequently happens with terribly clever men, he made a rather stupid mistake.