By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
During the past session of the Maryland General Assembly, the General Assembly passed House Bill 496 removing the words “by force or threat of force” from the sex offense statutes and changing the definition of “consent”. This new definition became effective on October 1, 2024.
This article will offer some thoughts as to whether this change in the law has materially changed what must be proved by the State in sex crime prosecutions. While this article offers some observations and attempts to raise some questions about the potential impact of these legislative changes, only experiences in the trials to come will flush out the answers to the questions raised and/or confirm the observations noted in this article.
What Is New?
Prior to October 1, 2024 proof of many sex crimes had as a required element of proof that the criminal act occur “by force or threat of force and without consent.” The new law has removed the words “by force or threat of force” from sex offense statutes. Those statutes now make it unlawful to engage in vaginal intercourse or a sexual act or sexual contact “without consent.”
In addition to removing the words “by force or threat of force” from the sex offense statutes, the General Assembly enacted a new statute to define “consent.” (Crim. Law 3-301.1 Consent). The language in the new statute defining consent follows:
Crim. Law 3-301.1 Consent Defined
(a) In this subtitle, “consent” means the clear and voluntary agreement by an individual to engage in vaginal intercourse, a sexual act, or sexual contact.
Existence Of Consent
(b) In this subtitle:
(1) the existence of consent, lack of consent, or withdrawal of consent shall be determined based on a totality of the circumstances, including the words and conduct of the victim and the defendant;
(2) consent may be withdrawn before or during vaginal intercourse, a sexual act, or sexual contact;
(3) the lack of consent may be communicated through words or conduct;
(4) a current or previous dating, social, or sexual relationship by itself does not constitute consent;
(5) submission as a result of fear, threat, or coercion does not constitute consent if the individual alleged to have performed the act in violation of this subtitle knows or reasonably should know that the victim would submit as a result of fear, threat, or coercion; and
(6) the manner of dress of an individual does not constitute consent.
Documentation Of Consent Not Required
(c) This section may not be construed to require documentation of consent.
Hazel, Rusk, and Martin
What will be the effect of repealing, as an element of the sexual offense statutes, the required element of “force or threat of force?” How has the requirement of “force or threat of force” historically been addressed by the appellate courts and how the appellate opinions have discussed the additional requirement that the prosecution also prove “lack of consent.”
A review of some of the major cases that have for years controlled the legal landscape regarding the elements of “force or threat of force” and “consent” provide some context for our discussion as to whether there is any significance in the new definition of “consent” and the elimination of the requirement of proof of “force or threat of force.”
In Hazel v. State, 221 Md. 464 (1960) the Supreme Court of Maryland reviewed a prosecution for common law rape, there defined as “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.” Id. at 468-69. The evidence disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel’s commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats.
The issue before the Hazel Court was whether “the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law.” Id. at 468. It was in the context of this evidentiary background that the opinion in Hazel set forth the principles of law which controlled the disposition of that case. The Court recognized that force and lack of consent are distinct elements of the crime of rape:
Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily, that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim having regard to the circumstances in which she was placed a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.
Id. at 469.
As to the element of lack of consent, the Hazel Court said:
[I] is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent.
Id.
The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear:
The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist.
Id. at 470.
Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim’s mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and non-consent, particularly when a threat rather than actual force is involved.
In Rusk v. State, 43 Md. App. 476, 484 (1979), rev’d, 289 Md. 230 (1981) the Appellate Court of Maryland (“ACM”) found the evidence insufficient to show that the State met the requirement element of showing lack of consent.
After reviewing the record, the ACM stated:
[We] find the evidence legally insufficient to warrant a conclusion that [Rusk’s] words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of “the look in his eyes.” After both were undressed and in the bed, and she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the “lightly choking” could have been a heavy caress. We do not believe that “lightly choking” along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by [Rusk], we find that the evidence was insufficient to convict appellant of rape.
43 Md. App. at 484.
Upon review by the SCM, that decision was reversed and the conviction was upheld:
We think the reversal of Rusk’s conviction by the [ACM] was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had “trampled upon the first principle of appellate restraint … (because it had) substituted (its) own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury … (and had thereby) improperly invaded the province allotted to those tribunals.” 43 Md.App. at 484-85. In view of the evidence adduced at the trial, the reasonableness of [the victim’s] apprehension of fear was plainly a question of fact for the jury to determine.
State v. Rusk, 289 Md. 230, 245 (1981).
The Rusk Court noted that Hazel did not expressly determine whether the victim’s fear must be “reasonable.” The Rusk Court noted that in Hazel:
Its only reference to reasonableness related to whether “the acts and threats of the defendant were reasonably calculated to create in the mind of the victim … a real apprehension, due to fear, of imminent bodily harm ….” 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim’s fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious bodily harm would suffice. The vast majority of jurisdictions have required that the victim’s fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.3 We think that, generally, this is the correct standard.
Id. at 241–244.
With the enactment of Crim. Law 3-301.1 the sufficiency analysis in sex crimes prosecutions no longer has to be concerned with whether there was “force or threat of force” but only whether the evidence established that under the “totality of the circumstances” that there was lack of consent.
In Martin v. State, 113 Md. App. 190, 244–45 (1996) the ACM discussed the concept of “constructive force.” Constructive force “is present when the perpetrator has acted in a manner to generate enough of a threat of force to make the victim’s decision not to resist reasonable even where was no actual force and the victim offered no actual resistance.
The Hazel opinion also discussed “constructive force” and stated that “[i]f the acts and threats of the defendant were reasonably calculated to create in the mind of the victim—having regard to the circumstances in which she was placed—a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.” Hazel v. State, 221 Md. at 469.
While the opinions discussing “force or threats of force” and “lack of consent” establish that they are different elements, query as to whether in the real world of prosecuting and defending sex crimes cases these terms are different. Will the elimination of the “force or threats of force” language have any effect in the trial of sex crimes cases? Even with the elimination of the “force or threat of force” language, the State still must prove that the act was done without the consent of the alleged victim. Of course, one way of proving lack of consent is the victim testifying that she said “no” or “stop.” But in instances where the victim did not say “no” or “stop” but still “acquiesced” – the jury will be instructed, based on the new statute, to consider “the words and conduct of the victim and the defendant” and they will be told that “submission as a result of fear, threat, or coercion does not constitute consent if the individual alleged to have performed the act in violation of this subtitle knows or reasonably should know that the victim would submit as a result of fear, threat, or coercion.” C.L. 3-301.1(b).
Using the appellate court’s description of “force” as including “constructive force” and using the “totality of the circumstances” standard in Crim. Law 3-301.1, it would seem that proof of the “circumstances” would be similar to the circumstances that the State has always sought to prove in sex crimes prosecutions. Where there is no actual force, the “threat of force” would still be proven, for example, by the words and actions of the accused, the environment in which the act occurs and whether the alleged victim’s professed lack of consent was based upon a reasonable perception of the circumstances under which the sexual act occurs?
While it may be that the proof and defense in most sex crime cases will be unchanged, will it make a difference where the sex act occurs where the alleged victim is passive, takes no steps to profess an unwillingness to engage in the sex act and simply “lets it happen”? Will the new laws make a difference in that situation? Even in those circumstances, where the evidence shows that the alleged victim was passive and non-expressive as to a lack of consent, will the State will be held to the burden of proving not only that the alleged victim did not consent but that the “totality of the circumstances” were such as to put the accused on notice that there was, in fact, no consent? Only time will tell.
There are specific provisions in the sex offense statutes to deal with a victim who is physically or mentally incapacitated or helpless at the time of the act. What we are dealing with in the context of the change in the law are those instances where the alleged victim is not incapacitated.
Although the new law removed the language of “force or threat of force” from the sex crime status, in defining what constitutes “submission” as contrasted with “consent” the definition of “submission” states that “submission as a result of fear, threat or coercion does not constitute consent.” Does this suggest that “submission” done without “fear, threat or coercion” may be considered consent? Does this language, in effect, incorporate back into the statutes the “force or threat of force” element in determining “consent” that the recent legislative changes removed from the sex offense crimes statutes?
The challenge for defense counsel will be to ensure that the new laws are not broadened beyond the literal language of the statutes and in contravention of legal precedent.
Jury Instructions -Keeping the Guardrails On Crim. Law 3-301.1
As already noted, at first glance the statutory changes seem to expand the circumstances under which one can be criminally liable for engaging in sexual activity where consent is the issue. While time will tell whether these statutory changes have a practical impact, much of what is in the new statutes may not change what evidence is presented during trial, what arguments are made, and what factors are considered by the trier of fact “under the totality of the circumstances.” What may be more impactful, however, is how the jury is instructed and how issues regarding sufficiency of the evidence during arguments on motions for judgment of acquittal or on appeal are analyzed. The manner in which jury instructions are prepared, particularly until Maryland Criminal Pattern Jury Instructions on sex crimes are updated, may be critical.
Pending a revision of the current pattern jury instructions for sex crimes, it can be anticipated that there will be vigorous jury instruction conferences as the prosecution and the defense argue for their respective positions as to what modifications need to be made in the current jury instructions for rape and sexual offenses to conform to Crim. Law 3-301.1.
The portions of the current instructions with respect to the issues of “force or threat of force” and “consent” clearly will need to be modified. As an example, the current jury instruction for second-degree rape reads, in pertinent part, with respect to the elements of “force or threat of force” and “consent” as follows:
The defendant is charged with the crime of second-degree rape. Rape is engaging in vaginal intercourse or a sexual act by force or threat of force and without consent.
In order to convict the defendant the State must prove: that the act was committed by force or threat of force; and that the act was committed without of the consent of [name].
The amount of force necessary depends on the circumstances. No particular amount of force is required. Evidence that the [name] physically resisted is not required.
Consent means actually agreeing to the [act] rather than merely submitting as a result of force or threat of force.
MPJI-Cr 4:29
Going forward, any current jury instructions will need to strike the “force or threat of force” language and incorporate a new definition of consent that is consistent the definition of “consent” as set forth in Crim. Law 3.301.1.
Arguing for properly drafted jury instructions can be critical in keeping the issue of consent in proper context. For example, Crim. Law 3-301.1 discusses the concept of “submission.” In arguing this statutory definition, a properly drafted instruction should include language telling the jury that both includes the statutory language that “submission as a result of fear, threat, or coercion does not constitute consent” (which is already well-established in the case law) but also one that includes the language and requirement that the State must prove that the defendant “knew or reasonably should have known that the alleged victim would submit as a result of fear, threat or coercion.” This provides the foundation for a jury argument that tells the trier of fact to focus on what the defendant reasonably believed, regardless of the feelings of the alleged victim as to whether the alleged victim felt threatened, forced or coerced. And, again, with respect to this portion of the jury instructions, the instructions should be drafted to make clear that it is the State’s burden to prove beyond a reasonable doubt that the defendant knew or reasonably should have known that the victim would submit as a result of “fear, threat or coercion.”
As previously noted, jury instructions can be important in determining what impact the new laws may have in the trial of sex crimes. If the State seeks to include in the jury instructions language tracking the statute that tells the jury that the alleged victim’s manner of dress or prior and/or current relations with the defendant do not, by itself, constitute consent, then the defense should be demanding that the jury instruction also includes language that informs the jury that “[h]owever, [these are factors] that you may consider under the “totality of the circumstances” in deciding whether the [alleged victim] consented.” With this balanced instruction, what has really changed about how “dress” or “relationships” may be considered by the trier of fact?
When discussing factors such as how the alleged victim was dressed or the nature of the prior or current relationships between the parties should not suggest that the trier of fact necessarily must give lesser weight or consideration to those factors. Rather the instructions should instruct that the jury should consider those factors just as it may consider other factors as it considers the “totality of circumstances” analysis. The dress may be a relevant factor under the totality of circumstances approach, for example, where the woman changes into lingerie immediately before the relations begin – that factor should not be excluded from the jury’s consideration.
Does Crim. Law 301.1 Change The State’s Burden Of Proof?
There are some significant considerations when considering the possible impact on the new laws during the trial of sex crimes.
Even under the new definition of “consent” and even with the elimination of “force or threat of force” the State must still prove, under the “totality of the circumstances” that there was no consent.
The definition of “consent,” as previously noted, means “the clear and voluntarily agreement by an individual to engage in vaginal intercourse, a sexual act or sexual contact.”
Crim. Law 3.301.1, on its face, seems to try to minimize the weight or consideration that the trier of fact should give to some of the “circumstances” that are litigated in sex crimes cases. Did the parties have a prior sexual relationship? How was the alleged victim dressed? Does the statute really compel that result? In fact, even under the new laws, these are still factors that can be relevant “under the totality of the circumstances.” Although the statute defining “consent” directs that a “current or previous dating, social, or sexual relationship by itself does not constitute consent” and that “the manner of dress of an individual does not constitute consent,” it does not prevent the trier of fact from considering such factors under “the totality of the circumstances.”
The inclusion in the statute of the statement that “[t]his section may not be construed to require documentation of consent” is also telling. In what real-world circumstance would it be expected that, prior to engaging in sex, one or both parties to the act would be required to “pause” and execute a written consent form to continue the sexual activity. What “give and take” in the legislative process caused this to be included in the definition of “consent?” Was it a recognition that the push for the enactment of these statutory changes risked a definition of “consent” without due process guardrails?
While Crim. Law 3-301.1 will definitely result in significant changes in jury instructions, will it significantly impact on how sex crimes trials are conducted?
Since the State still must prove lack of consent beyond a reasonable doubt, the State will still bear the burden of disproving, beyond a reasonable doubt, that the alleged victim did not “clearly and voluntarily” agree to engage in vaginal intercourse, a sexual act or sexual contact. Jury instructions should be carefully drafted so as not unduly minimize the State’s burden of proof regarding lack of consent or suggest that the defendant bears any burden to prove consent.
Jury instructions, when defining “consent,” should include language that makes it clear that is it the State’s burden to prove that there was a lack of consent and that the State must prove that lack of consent beyond a reasonable doubt.
Final Thoughts
In summary, Crim. Law 3.301.1 offers a more detailed definition of “consent.” However, in considering the holdings of appellate cases that have addressed the issue of “force or threat of force” and “lack of consent” – one sees that “lack of consent” has almost always been a “totality of the circumstances” analysis of the conduct of the alleged victim and the defendant. In those instances where submission occurred, and there was an absence of actual force, and the court found the evidence insufficient, it would have been because the State did not prove that the defendant “knew” or “reasonably should have known” that the submission was because the victim was in fear, was threatened or was coerced.
Only the future will answer the questions posited or confirm the observations highlighted in the article as to whether these legislative changes will materially impact on the trial of sex crimes.