People v. Evans

OPINION BY: GREENFIELD

The question presented in this case is whether the sexual conquest by a predatory male of a resisting female constitutes rape or seduction.

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 labeled 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.

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.

The defendant, a bachelor of approximately 37 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 20-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 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.

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 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 up to an apartment on the 14th 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.

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.

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, 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 7:00 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, 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, 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 involvment with her in any way.

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 14D 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."

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 occasions 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.

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." 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 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.

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 strange 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.

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 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. 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 that terror. But this being a criminal trial, it is basic that the criminal intent of the defendant must be shown beyond a reasonable doubt. 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.

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 consistent with 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. The defendant apparently got his kicks through the exercise of these techniques. He apparently spurned the readily available 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.

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 25 years.