On 27 August 1979 at about 6:00 P.M., the complainant, a forty-nine year old woman, who was five feet tall and who weighed 130 pounds, entered the lobby of her apartment building. She was returning home from work. When an elevator arrived, the complainant entered and pressed the button for the tenth floor where her apartment was located. A young male entered the elevator with her and pressed the button for another floor. A New York Criminal Lawyer said the next thing the complainant noticed was the elevator stopping. Upon looking up to see if it was her floor, she saw the defendant standing by the elevator buttons, manipulating them. She also saw that the elevator was stopped between floors, with the door to the elevator shaft being open. However, the alarm bell of the elevator did not go off. Allegedly, the young male, a fifteen year old, who was approximately five feet seven inches tall and weighed in excess of two hundred pounds, turned around and told her to take her clothes off, and undress. When the complainant did not respond, the defendant repeated this demand. A New York Criminal Lawyer said the complainant then complied and was subjected to acts of sexual intercourse and sodomy during the next ten to fifteen minutes. Following this, the defendant told the complainant to get dressed, and he started the elevator back up, eventually getting out at the twenty-second floor. The complainant was then able to get the elevator back down to her floor, where she got out, went into her apartment, and called the development’s security police force. They then contacted the New York City Police Department. The defendant was identified by the complainant later that evening at the security police offices and was arrested.
Thereafter, the defendant was indicted on charges of Rape in the First Degree and Sodomy in the First Degree.
During trial, the complainant testified that she had not attempted to scream at any time before or during the incident because she felt that no one outside the elevator could have heard her, or helped her; that the defendant did not use any overt physical force against her, either before or during the incident, other than what was necessary for completion of the sexual acts; that the only express threat made by the defendant came after completion of the incident, as he was leaving the elevator, in which he stated that if anything happened to him in the next couple of days, his friends would get her.
The defense moved for a trial order of dismissal as to both counts of the indictment, pursuant to Criminal Procedure Law. A New York Drug Possession Lawyer said the defense claimed that the People had failed to present sufficient evidence upon which the jury could find beyond a reasonable doubt that the defendant exercised forcible compulsion in the commission of the crimes charged, this being an essential element of each of the charges.
The Court reserved decision on the motion and the jury ultimately returned a verdict of guilty as to both counts. The motion to dismiss must now be decided.
The lone issue to be decided in the motion to dismiss is whether or not forcible rape and sodomy have been committed when a woman submits to these acts, without physical resistance on her part, and without an explicit threat by a man with whom she is trapped in an elevator that is stalled between floors.
In the instant case, the court must decide whether the People presented sufficient evidence from which a jury could conclude, beyond a reasonable doubt, that the defendant’s sexual acts with the complainant had been committed by the use of forcible compulsion, that is, physical force which is capable of overcoming 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. Included in this is the definition of earnest resistance.
Here, there is no doubt that the complainant’s freedom was violated. The United States Supreme Court long ago said that the inviolability of a person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lie bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass. The issue before the court herein is more complex, however, since it must determine from the facts of the case whether the defendant either exerted physical force capable of overcoming the complainant’s reasonable, earnest resistance, or whether the complainant was overcome by fear of immediate death or serious physical injury due to threat from the defendant. Both of these questions must be measured by all of the attendant circumstances of the case.
First, it is clear that there was no express threat issued by the defendant. Nonetheless, there was a definite implied threat from the defendant to the complainant, from which she could reasonably have concluded that she was faced with immediate death or serious physical injury. It is a well-settled point of law that a threat can be implied, as well as being express. A California court stated over thirty-five years ago that they are unable to agree with the view that there can be no threat unless it is expressed in words or through the exhibition of a gun, knife or other deadly weapon. A threat may be expressed by acts and conduct as well as by words. If one were met in a lonely place by four big men and told to hold up his hands or to do anything else, he would be doing the reasonable thing if he obeyed, even if they did not say what they would do to him if he refused. Their actions and manner might well indicate their purpose and intention and it would be a mere play on words to say that these actions and circumstances did not constitute, and were not the expression of, a threat. In fact, it would be a very compelling one. Here, instead of being faced with four big men in a lonely place, the complainant was faced with a husky teenager, who was seven inches taller and who outweighed her by over seventy pounds. She was trapped in a stalled elevator, between floors, with no place to retreat to, or from which help could arrive. The law, and common sense, did not require that she ascertain what the defendant would do to her if she refused to take off her clothes. Nor does it take but a brief recognition of the everyday events in this City to reasonably conclude that a gun, knife or other deadly weapon might quickly and savagely be used if she did not yield to the defendant.
Thus, the Court finds that the defendant engaged in sexual acts with the complainant by means of forcible compulsion, in that there was an implied threat which placed the complainant in fear of immediate death or serious physical injury. This alone would be enough to deny the defendant’s motion.
Second, the physical force aspect of the case leads the Court to the same conclusion. While the defendant did not actually grab or hit the complainant, his act of manipulating the elevator to stop it between floors was certainly a physical act directed against the complainant. That act, plus the physical advantages that the defendant enjoyed, constituted the use of physical force which is capable of overcoming earnest resistance. There are many instances where no resistance could reasonably be expected from a person who genuinely refuses to participate in sexual activities, and it is difficult for the Court to imagine one clearer than the case at hand. The fact that the defendant would have inevitably succeeded in forcing himself on the complainant, able to overcome any possible resistance she could have offered, plus the fact that she was totally at his mercy in the stalled elevator, clearly indicates that total compliance by the complainant was all that earnest resistance could reasonably require.
Thus, a New York Sex Crimes Lawyer said that the court finds that the defendant engaged in sexual acts with the complainant by means of forcible compulsion, in that he used physical force capable of overcoming the earnest resistance of the complainant.
In sum, the court finds as a matter of law that the People presented sufficient trial evidence from which the jury could conclude, beyond a reasonable doubt: that the defendant engaged in sexual acts with the complainant by means of forcible compulsion. The Court finds no grounds to set aside the verdict on both counts.
Thus, the defendant’s motion to dismiss the indictment is denied.
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