People v. Evans

379 N.Y.S.2d 91285 Misc.2d 1088

The PEOPLE of the State of New York

v.
Martin EVANS, a/k/a Martin Sage, Defendant.

James Vinci,Legal Aid Soc., Howard Meyer, New York City, Trial Counsel, fordefendant.

EDWARD J.GREENFIELD, Justice:

The questionpresented in this case is whether the sexual conquest by apredatory male of a resisting female constitutes rape orseduction.

In making thedistinction, we must deal with patterns of behavior which have beenexhibited by aggressive males towards gentle or timid or submissivefemales, the broad outlines of which have been similar for hundredsor maybe thousands of years, but the particulars of which varymarkedly in individual cases.

It is a fact, Isuppose, that since before the dawn of history men with clubs havegrabbed women, willing or unwilling, by the hair, to have their waywith them. Techniques have become more varied and more subtle withthe years.

As we havebecome more civilized, we have come to condemn the more overt,aggressive and outrageous behavior of some men towards women and wehave labelled it 'rape.' We have attempted to control or deter itby providing for extremely heavy sentences, second to and, in somejurisdictions, equalled by the penalties set by the law formurder.

At the same timewe have recognized that there are some patterns of aggression oraggressive male sexual behavior toward females which do not deservesuch extreme penalties, in which the male objective may be achievedthrough charm or guile or protestations of love, promises ordeceit.

Where force isnot employed to overcome reluctance, and where consent, howeverreluctant initially, can be spelled out, this we label 'seduction,'which society may condone, even as it disapproves.

There is someconduct which comes close to the line between rape and seduction.This is such a case.

Since a jury hasbeen waived, this Court is called upon to scrutinize the conductinvolved and to draw the line between the legally permissible andthe impermissible and to determine on which side of the line thisconduct falls.

Rape is definedin our Penal Law, Section 130.35, subdivision 1, as follows: 'Amale is guilty of rape in the first degree when he engages insexual intercourse with a female: 1. By forcible compulsion.'

Rape can also bepremised upon other conditions which would indicate the incapacityof a female to give consent either in actuality or as a matter oflaw. We are concerned here with the first subdivision, sexualintercourse by forcible compulsion. That is the essence of thecrime.

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Forciblecompulsion is defined in Section 130.00 subdivision 8, of the PenalLaw as 'physical force that overcomes earnest resistance; or athreat, express or implied, that places a person in fear ofimmediate death or serious physical injury to himself or anotherperson, or in fear that he or another person will immediately bekidnapped.'

Rape, though itsometimes may be abetted by other females, appears to beexclusively a proscribed activity for males.

Seduction, onthe other hand, may be freely indulged in by both sexes. Itinvolves allurement, enticement, or persuasion, to overcome initialunwillingness or resistance. Its ends may be achieved by fair meansor foul, but seduction eschews the crudities of force and threats.In which category does defendant's conduct fall?

In answeringthat inquiry, and based upon the testimony in this case, the Courtfirst makes the following findings of fact:

The defendant, abachelor of approximately thirty-seven years of age, aptlydescribed in the testimony as 'glib', on July 15, 1974 met anincoming plane at LaGuardia Airport, from which disembarked LucyElizabeth Peterson, of Charlotte, North Carolina, a twenty-year-oldpetite, attractive second-year student at Wellesley College, anunworldly girl, evidently unacquainted with New York City and thesophisticated city ways, a girl who proved to be, as indicated bythe testimony, incredibly gullible, trusting and naive.

The testimonyindicates that the defendant struck up a conversation with her,posing as a psychologist doing a magazine article and using a namethat was not his, inducing Miss Peterson to answer questions for aninterview.

The evidencefurther shows that the defendant invited Miss Peterson to accompanyhim by automobile to Manhattan, her destination being Grand CentralStation. They They were accompanied in the automobile by otherpersons, some of whom were introduced by the defendant ascolleagues on a professional basis. But it appears that a funnything happened on the way to the station. There were numerousdetours before Beth Peterson ever found her way to Grand CentralStation. First, they were taken to an apartment on the east side.Some of the party were left there.

Then theevidence indicates that this defendant and a girl named Bridgettook Miss Peterson to an establishment called Maxwell's Plum, whichthe defendant explained was for the purpose of conducting asociological experiment in which he would observe her reactions andthe reactions of males towards her in the setting of a singles bar.After several hours there, in which Miss Peterson evidently wasstill under the belief that her stopping for a drink at Maxwell'sPlum was part of this psychological and sociological experiment,she was persuaded to accompany the defendant to the west side, uponthe

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defendant's explanation that he was there going to pick up hisautomobile and drive her to Grand Central Station.

Instead of goingto the automobile, she was induced to come up to an apartment onthe fourteenth floor, which the defendant explained was used as oneof his five offices or apartments throughout the city; and MissPeterson, still believing that the defendant was in fact what hepurported to be, went up and accompanied him there. That apartment,Apartment 14--D, at 1 Lincoln Plaza, was in truth and in fact theapartment of one Heinz Patzak, who ran the Austrian NationalTourist Bureau and who at that time was in Austria. Mr. Patzak hastestified that he never had given approval or permission for thedefendant to enter, use or occupy that apartment.

Miss Petersoncame to the apartment and her questions as to the existence ofphotographs of children, a crib, stuffed animals and toys, werereadily explained away by the defendant as being connected with histreatment of patients as a psychologist, the explanation of thecrib and the toys being that there were used for the purposes ofprimal therapy to enable his patients to associate with theirchildhood years more readily. In the apartment the psychologicalinterviewing continued, the defendant having explained to MissPeterson that he was searching for the missing link between the'girl-woman' and the 'woman-girl.' Miss Peterson, who was thenworking in a psychiatric branch of New York Hospital, CornellMedical School, in White Plains, and who had some training inpsychology, believed that all of this legitimately related to apsychological research project which the defendant wasconducting.

During thecourse of the interview in the apartment the defendant probed MissPeterson's life and she had, during the course of theirconversation together, made a revelation of her prior intimaciesand her feelings, and her experiences with respect to variouspeople. In the apartment she was asked to participate in anadjective word game, applying five adjectives to certain designatedpersons, including herself and the defendant.

She had beenthere for one to two hours when the defendant made his move andpulled her on to the opened sofa-bed in the living room of thatapartment and attempted to disrobe her. She resisted that, and sheclaims that as articles of clothing were attempted to be removedshe would pull them back on and ultimately she was able to ward offthese advances and to get herself dressed again. At that point, thedefendant's tactics, according to her testimony, appeared to havechanged.

First, he informed her of his disappointment that she had failedthe test, that this was all part of his psychological experiment,that, in fact, this was a way in which he was trying to reach herinnermost consciousness, one of the ways in which that could bedone. Then,

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after expressing disappointment in the failure of thispsychological experiment, he took steps to cause doubt and fear toarise 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 Iam really who I say I am? How do you know that I am really apsychologist?' Then, he went on and said, 'I could kill you. Icould rape you. I could hurt you physically.'

Miss Petersontestified that at that point she became extremely frightened, thatshe realized, indeed, how vulnerable she was. The defendant did notstrike her, did not beat her, he exhibited no weapons at the time,but he made the statement, 'I could kill you; I could rapeyou.'

Then there wasyelling and screaming, further to intimidate the defendant, andthen an abrupt switch in which the defendant attempted to play onthe sympathy of Miss Peterson by telling her a story about his lostlove, how Miss Peterson had reminded him of her, and the hurt thathe had sustained when she had driven her car off a cliff.Obviously, Miss Peterson's sympathy was engaged, and at that timeacting instinctively, she took a step forward and reached out forhim and put her hand on his shoulders, and then he grabbed her andsaid, 'You're mine, you are mine.' There thereupon followed an actof sexual intercourse, an act of oral-genital contact; a half-hourlater a second act of sexual intercourse, and then, before sheleft, about seven o'clock that morning, an additional act.

The sexualintercourse appears to be corroborated by the findings of thelaboratory confirmation of seminal fluid on the underclothing whichshe had worn at the time.

The testimonyindicates that during these various sexual acts Miss Peterson, infact, offered little resistance. She said that she was pinned downby the defendant's body weight, but in some manner all her clothingwas removed, all his clothing was removed, and the acts took place.There was no torn clothing, there were no scratches, there were nobruises. Finally, at approximately seven a.m. Miss Peterson dressedand left the apartment. She says that the defendant acknowledged toher that he was aware that it had been against her will, but henevertheless gave her three telephone numbers. Miss Peterson thenreturned to White Plains, where later that day she recited some ofthe events to a fellow-worker, fellow-worker, and then to aroommate. Ultimately she reported the facts to the New York CityPolice and to the Westchester County Sheriff's office, resulting inher being taken to New York City by personnel from the WestchesterCounty Sheriff's office where, at the Gulf & Western Buildingat Columbus Circle they saw the defendant emerging from anelevator. Despite her identification of him at that time thedefendant initially denied that his name was Marty, that he knewMiss Peterson, or that he had had any involvement with her in anyway.

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After he hadbeen placed under arrest in a coffee shop of the Mayflower Hotel,and they had proceeded to the building at No. 1 Lincoln Plaza, thedefendant began to make partial admissions as to his identity, hisoccupation of Apartment 14--D at No. 1 Lincoln Plaza, his knowledgeof Miss Peterson and ultimately the fact that he had had sexualintercourse with her, which he claimed was consensual and a matterof mutual enjoyment. He further told the police officers that thewhole psychology bit was a 'game that he played with girls'heads.'

The testimonyfurther indicates that after he had been placed under arrest, andwhile he was in custody, he escaped from the police car in which hehad been placed, and that Detective Kelleher chased him in andaround the streets and up 15 flights of a building, where heultimately located Evans on a water tower. The explanation given toDetective Magnusson was that he was looking for a lawyer.

Those being thefacts, the Court arrives at the following conclusions:

The Court findsthat the testimony of Beth Peterson was essentially credibletestimony. The Court finds from the story which she has narratedthat the defendant was a person who was crafty, scheming,manipulative, and ever ready with explanations.

From thetestimony which has been given there are some factors which tend topoint toward guilt and some towards innocence. As factorsindicating guilt are the assumption of the false identity by thedefendant, his not giving his true name, his denial to the policewhen first confronted of what his name was, and his denial of anyknowledge of Miss Peterson, which denials he ultimately retracted.Then, of course, there is the evidence about flight which is alwaysevidence that can be considered as evincing some consciousness ofguilt. On the other hand, there are some factors pointing toinnocence on the part of the defendant, and a lack of criminalculpability on his part. The fact that Miss Peterson had no bruisesor scratches, no torn clothing, that she had been allowed toproceed from the apartment without any further threats orconcealment as to location. The fact that she was given phonenumbers by the defendant which made it relatively easy to trace hislocation and whereabouts; the fact that he attempted to call her onseveral accasions after she had left the apartment; and the factthat he had continued in his prior haunts at the Gulf & WesternBuilding and at No. 1 Lincoln Plaza. From all this, the Courtconcludes that the defendant inveigled Miss Peterson, deceived her,put her on, and took advantage of her.

The question iswhether having had sexual intercourse by the same means describedconstitutes rape in the first degree. The essential element of rapein the first degree is forcible compulsion. The prevailing view inthis country is that there can be no rape which

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is achieved by fraud, or trick, or stratagem. 75 C.J.S. Rape §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 astatute, no matter how despicable the fraud, even if a woman hasintercourse with a man impersonating her husband (Lewis v. Alabama,30 Ala. 54); or if a fraudulent ceremony leads her to believe sheis legally married to a man (Alabama v. Murphy, 6 Ala. 765),(contra if an explicit statute to that effect exists, e.g., Statev. Navarro, 90 Ariz. 185, 367 P.2d 227, 91 A.L.R.2d 586) or even ifa doctor persuades her that sexual intercourse is necessary for hertreatment and return to good health. Don Moran v. People, 25 Mich.356; Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, 70A.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 forcewhich the statute makes mandatory. Mills v. U.S., 164 U.S. 644, 648(17 S. Ct. 210, 41 L.Ed. 584).' Id., p. 822.

It should benoted that seduction, while not considered to be a criminal act atcommon law (79 C.J.S. Seduction § 31), has been made acriminal offense by statute in some jurisdictions. In seduction,unlike rape, the consent of the woman, implied or explicit, hasbeen procured, by artifice, deception, flattery, fraud orpromise.

The declaredpublic policy of this state looks with disfavor on actions forseduction since the civil action was abolished more than fortyyears ago, CPA §§ 61--b, 61--d; now Civil Rights Law,§ 80--a. The statute did not repeal any Penal Law provisions(CPA §§ 61--h, 61--i, now Civil Rights Law § 84),but there are no presently existing penal sanctions againstseduction. The law recognizes that there are some crimes wheretrickery and deceit do constitute the basis for a criminal charge.Since the common law, we have recognized the existence of larcenyby trick. But of course, for a larceny there has to be a taking ofproperty of value. I do not mean to imply that a woman's right toher body is not a thing of value, but it is not property in thesense which is defined by the law.

It is clear fromthe evidence in this case that Beth Peterson was intimidated; thatshe was confused; that she had been drowned in a torrent of wordsand perhaps was terrified. But it is likewise clear from theevidence that the defendant did not resort to actual physicalforce. There was "no act of violence, no struggle, no outcry, andno attempt to restrain or confine the person . . . which constitutethe 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 arestraint imposed by his body weight, which would be the normalsituation in which any sexual contact would be achieved. MissPeterson manifested little or no resistance. She indicated at

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some point she kicked. I asked her what she was doing with her armsand hands at the time. The answers indicated that it was not verymuch. Now, that can be understandable. A woman is not obligated toresist to the uttermost under all circumstances, when her will toresist has been paralyzed by fear and by threats. That is why thelaw recognizes the existence of a threat as being the equivalent ofthe 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, inthe Court of Appeals:

'The extent of the resistance required of an assaulted female isgoverned by the circumstances of the case, and the grounds whichshe has for apprehending the infliction of great bodily harm.

'When an assault is committed by the sudden and unexpectedexercise of overpowering force upon a timid and inexperienced girl,under circumstances indicating the power and the will of theaggressor to effect his object, and an intention to use any meansnecessary to accomplish it, it would seem to present a case for ajury to say whether the fear naturally inspired by suchcircumstances had not taken away or impair the ability of theassaulted party to make effectual resistance to the assault.'

Whetherresistance was useless under the prevailing circumstances is aalways 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 questionhere is not so much the use of force, but whether threats utteredby the defendant had paralyzed her capacity to resist and had, infact, undermined her will. Now, what was it the defendant said? Hesaid, 'Look where you are. You are in the apartment of a strongman. How do you know that I really am who I say I am? How do youknow that I am really a psychologist? I could kill you. I couldrape you. I could hurt you physically.' Those words, as uttered,are susceptible to two possible and diverse interpretations. Thefirst would be in essence that--you had better do what I say, foryou are helpless and I have the power to use ultimate force shouldyou resist. That clearly would be a threat which would induce fearand overcome resistance. The second possible meaning of those wordsis, in effect, that--you are a foolish girl. You are in theapartment of a strange man. You put yourself in the hands of astranger, and you are vulnerable and defenseless. The possibilitywould exist of physical harm to you were you being confronted bysomeone other than the person who uttered this statement.

Of course, it isentirely possible that Miss Peterson, who heard the statements,construed that as a threat, even though it may not have beenintended as such by the person who uttered those words. Thequestion arises as to which is the controlling state of mind--thatof a person who hears the words and interprets them as a

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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 bethat 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 whichwould not justify the induction of that terror. But this being acriminal trial, it is basic that the criminal intent of thedefendant must be shown beyond a reasonable oubt. It is his intentwhen he acts, his intent when he speaks, which must therefore becontrolling. And so, if he utters words which are taken as a threatby the person who hears them, but are not intended as a threat bythe person who utters them, there would be no basis for finding thenecessary criminal intent to establish culpability under the law.

So where astatement is ambiguous, where the words and the acts which purportto constitute force or threats are susceptible of diverseinterpretations, which may be consistent with either guilt orinnocence, the Court, as the trier of the facts, cannot say beyonda reasonable doubt that the guilt of the defendant has beenestablished with respect to the crime of rape. The words which wereuttered 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 tothe complainant what his lost love had done to him--the Court findsare ambiguous. They were not accompanied by violence. They were notaccompanied by a demonstration of the intention to carry out thethreats. There was no beating. There was no weapon displayed. Therewas a statement as to a possibility, a statement of vulnerability.The Court finds it cannot conclude that there was the utterance ofa threat of such a nature as to enable the Court to find thedefendant guilty of the crime of rape in the first degree beyond areasonable doubt. Since the Court, therefore, can find neitherforcible compulsion nor threat beyond a reasonable doubt, thedefendant is found not guilty on the charges of rape, sodomy andunlawful imprisonment.

Now, acquittalon these charges does not imply that the Court condones the conductof the defendant. The testimony in the case reveals that thedefendant was a predator, and that naive and gullible girls likeBeth Peterson were his natural prey. He posed. He lied. Hepretended and he deceived. He used confidences which wereinnocently bestowed as leverage to effect his will. He usedpsychological techniques to achieve vulnerability and sympathy, andthe erosion of resistance. A young and inexperienced girl like BethPeterson was then unable to withstand the practiced onslaught ofthe defendant.

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The defendant apparently got his kicks through the exercise ofthese techniques. He apparently spurned the readily availab women,the acquiescent women, like Bridget, who was living in the sameapartment. To him, the game was worth more than the prize. Heboasted to the police that this was a game he played with girls'heads. The Court finds his conduct, if not criminal, to bereprehensible. It was conquest by con job. Truly, therefore, thisdefendant may be called 'The Abominable Snowman.'

So bachelors,and other men on the make, fear not. It is still not illegal tofeed a girl a line, to continue the attempt, not to take no for afinal answer, at least not the first time. But there comes a pointat which one must desist. It is not criminal conduct for a male tomake promises that will not be kept, to indulge in exaggeration andhyperbole, or to assure any trusting female that, as in the ancientfairy tale, the ugly frog is really the handsome prince. Every manis free, under the law, to be a gentleman or a cad. But take heed.Violence, force and threats are totally out of bounds. Theiremployment will transform a heel into a criminal.

While the Courtmust conclude that the defendant's conduct towards Miss Petersoncannot be adjudged criminal so as to subject him to the penalty ofimprisonment for up to twenty-five years, the Court finds, on theundisputed 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 proofthat the illegal entry was for the purpose of committing a crime,the defendant is found not guilty of the charge of burglary in thesecond degree. But he is found guilty of the lesser includedoffense of criminal trespass in the second degree, pursuant toSection 140.15 of the Penal Law, under Indictment No. 3861 of1974.

Further, theevidence clearly establishes that the defendant, after having beenarrested for a felony, escaped from the custody of the policeofficers, and he is found guilty of the crime of escape in thesecond degree, under Section 205.10 of the Penal Law.

It may be ironicthat the defendant, having been acquitted of the charges for whichhe was arrested, is found guilty of attempting to flee from thepossibilities of having to face up to the charge. But the facts areclear, and whatever consequences flow from that fact will flow. Thedefendant fancied himself to be terribly clever, but, as frequentlyhappens with terribly clever men, he made a rather stupidmistake.

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* On the same date as this decision the press reported adecision by the British House of Lords, holding that there could beno conviction of rape if the accused really believed that there wasconsent, despite the vociferous protest of the woman, when he hadbeen told beforehand that she preferred intercourse to beaccomplished over her vehement protests. The principle, of course,is that the subjective state of mind of the defendant controls indetermining criminal intent.