Conley v. State

Marian F. Penix, Judge,

concurring. I concur with the majority in affirming the defendant’s conviction, but I would grant the cross-appeal.

Rape is a crime unlike all others in that proof of consent is an absolute defense. Even where two consenting adults enter into a double suicide pact and they both willingly die, society rejects the consent and we call it a “murder-suicide”.

Before our legislature wisely eliminated an attack on the character of the female victim as evidence, many rape trials consisted primarily of an effort to picture the female as a person whose wanton sexual activities of the past made her fair game for the male defendant, and, whatever ensued was of minor significance.

Except for attacks upon young male inmates of penitentiaries, rape almost exclusively is a problem of the female. Its victims may be eight years of age, or eighty, attractive or homely, brash or shy, and of.all races, creeds and strata of society. Sadly, the occurrence of this crime continues to increase in Little Rock, in Arkansas, and over the nation.

The writer of this opinion dares not work in her office when the Justice Building is empty because she’s unwilling to subject herself to the danger of rape. No male opinion writer is ever faced with this sinister problem.

In this case the female victim testified she was awakened by the defendant standing over her bed and threatening her with a knife if she didn’t submit to his sexual assault upon her. Defendant testified the female had been lonely and invited him to her home and consented to the sexual relationship.

Here, a male defendant says the prosecuting witness, who alleges she was raped, actually consented.

The fact to be established, non-consent, is crucial in a rape case . . . Often the more serious problem is proving non-consent. . . Absent a physical struggle resulting in bruises or lacerations, such resistance is often difficult to prove . . . Certainly, the fact that an individual commits a rape at one time has no bearing on whether another consented to intercourse at a later time. Here, however, the People did not offer the prior acts to prove prior rapes, or that the defendant is a bad man with criminal propensities. The People offered the prior acts to shown the scheme, plan or system employed by the defendant in raping the complainant . . . People v. Oliphant, 250 N.W. 2d 443 at 450 (Mich. 1976).

See also Fisher v. State, 57 Ala. App. 310, 328 So. 2d 311 (1976); State v. Valdez, 23 Ariz. App. 518, 534 P. 2d 449 (1975); Pendleton v. State, 348 So. 2d 1206 (Fla. 1977); Dean v. State, 277 So. 2d 13 (Fla. 1973). In this case three other females were willing to undergo embarrassment and humiliation and describe the details of sexual assaults upon them by this same defendant in the same eight-week period in the same neighborhood and in much the same manner. This indeed was relevant to the defendant’s intent in the trial at hand. Such evidence should have been allowed after an adequate precautionary instruction limiting consideration of the evidence to show the defendant’s motive, intent, knowledge, or absence of mistake. Ark. Stat. Ann. § 28-1001 (Supp. 1977) Rule 404(b). McCormick, Evidence § 190, at 448-51 (2d ed. 1972); State v. Thomas, 110 Ariz. 106, 515 P. 2d 851 (1973); Carroll v. State, 212 Tenn. 464, 370 S.W. 2d 523 (1963); Turnbow v. State, 451 P. 2d 387 (Okla. Crim. 1969); Humphrey v. State, 54 Ala. App. 62, 304 So. 2d 617 (1974); People v. Therriault, 42 Ill. App. 3d 876, 356 N.E. 2d 999 (1976). See Louisell & Mueller, Federal Evidence § 140 (1978); Annot., Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 77 A.L.R. 2d 841 (1961).

When Patty Hearst said she participated in a bank robbery only because she was under duress the court allowed evidence of her willing participation in a later robbery to rebut this female accused’s claim of duress in the earlier robbery. U.S. v. Hearst, 563 Fed. 2d 1331 (1977)

Appellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. The evidence of appellant’s involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote, p. 1336.

It may well be that the ultimate precedent on this point should come from our Supreme Court under its Rule 29.

I would grant the cross-appeal and admit the excluded evidence of nearly identical assaults on other females which are close in time and location to the case being tried.