Schochet v. State

Decision Date09 October 1990
Docket NumberNo. 76,76
Citation320 Md. 714,580 A.2d 176
PartiesSteven Adam SCHOCHET v. STATE of Maryland. Sept. Term 1988.
CourtMaryland Court of Appeals

Joseph P. Suntum (Miller, Miller & Canby, Chartered, both on brief), Rockville, for petitioner.

Stephen J. Shapiro, Gerard J. Gaeng, Debra A. Jung, Whiteford, Taylor & Preston, Baltimore, amicus curiae, for American Civil Liberties Union of Maryland, Inc.

David W. Ogden, Thomas N. Griffin, III, Donald B. Verrilli, Jr., Harry H. Rieck, Jenner & Block, Washington, D.C., amicus curiae, for Maryland Psychological Ass'n, Institute for Advanced Study of Human Sexuality, American College of Sexologists, Society for the Scientific Study Of Sex, And Population Planning Associates.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.




Two major issues are presented in this case. First, does Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 554, providing criminal penalties for "unnatural or perverted sexual practices," encompass consensual, noncommercial, heterosexual activity between adults in the privacy of the home? Second, if Art. 27, § 554, criminalizes such activity, does it violate either the Constitution of the United States or the Maryland Declaration of Rights? As we shall answer the first question in the negative, we do not reach the second question.


An eight-count indictment was filed in the Circuit Court for Montgomery County, charging the petitioner, Steven Adam Schochet, with various sexual offenses. All of the charged offenses were committed upon the same alleged victim during one night in October 1986.

Counts one and four of the indictment charged Schochet with rape in the first degree and rape in the second degree, in violation of Maryland Code (1957, 1987 Repl.Vol.), Art. 27, §§ 462 and 463, based upon his engaging in vaginal intercourse with the complaining witness, Dovie Sullivan, allegedly by force or threat of force, against the will and without the consent of the complaining witness. Counts two, three, five, and six of the indictment charged Schochet with first and second degree sexual offenses, in violation of Art. 27, §§ 464 and 464A, based upon his allegedly engaging in anal intercourse and fellatio with Ms. Sullivan, all by force or threat of force, against the will and without the consent of the complaining witness.

Count seven charged Schochet with sodomy, in violation of Art. 27, § 553, 1 based upon his allegedly having anal intercourse with Ms. Sullivan. Count eight, which is the only count on which Schochet was convicted, charged him with committing "a certain unnatural and perverted sexual practice with" Ms. Sullivan, namely fellatio, in violation of Art. 27, § 554. 2 Schochet filed a pretrial motion to dismiss counts seven and eight on the ground that they were constitutionally infirm, but the circuit court denied the motion.

At Schochet's trial two entirely different versions of the incident giving rise to the charges were presented to the jury, one by the complaining witness and one by Schochet. The verdicts indicated that the jury credited Schochet's version and not that of Ms. Sullivan. Nevertheless, we shall set forth both versions.

Dovie Sullivan testified that on the evening of October 3, 1986, she was at home with her 11-year-old daughter. The daughter went to bed about 10:30 p.m., and Ms. Sullivan stayed up, drinking and listening to music in celebration of her divorce. Ms. Sullivan heard a knock at her door at approximately 12:30 a.m. When she answered the door, she found the defendant, Steven Schochet, whom she did not know, standing outside. He said that he was looking for a friend named Denise, and he asked to use the telephone to call the apartment next to Sullivan's. Ms. Sullivan let him in the apartment to use the telephone.

When Schochet was inside the apartment he began to admire the stereo system and continued to make conversation about it. Ms. Sullivan tried to direct his attention to the telephone, but he ignored her, went into the kitchen, and asked her to fix him a drink and something to eat. When she told him to leave, he looked at her very strangely, and she became frightened. He continued to make himself at home and acted as if he belonged in her apartment. He wandered throughout the apartment while Ms. Sullivan followed asking him to leave. She testified that she did not scream or try to get help because her daughter was asleep, and she feared for her daughter's safety as well as her own.

Ms. Sullivan went on to testify that Schochet eventually made his way to her bedroom where he forced her to perform fellatio and have vaginal sexual intercourse. She stated that, although he had no weapon and made no overt threats, she was afraid of him. Next, Schochet fixed himself something to eat, then took her back to her bedroom, and again forced her to perform fellatio and have vaginal and anal intercourse. Afterwards, he told her that he needed some rest and went to sleep on the bedroom floor.

According to Dovie Sullivan, the next morning she got up to send her daughter off to school and told Schochet to remain in the bedroom so that her daughter would not see him. Sullivan stated that she locked the bedroom door behind her. After her daughter left for school, she ordered Schochet to leave. Sullivan stated that he made her follow him to his car so that she would not call the police. When Schochet drove off, she went back to her apartment and went to sleep for a few hours. After she awoke and was getting ready to leave for work, she heard a knock at the door. She looked through the peephole on the door and saw that it was Schochet. He accused her of giving him "crabs" and demanded that she give him some money so that he could go to a doctor. She refused to open the door, and Schochet left. She then went to work for a few hours, and, when she returned home, she saw Schochet's car in the parking lot. Ms. Sullivan went into her apartment, and within five minutes there were four policemen at the door. They questioned her about a report which they had received concerning an abused child. The police officers noticed that she was upset and left a number where she could contact someone if she wanted to talk. Sullivan was later visited by a female detective, and she gave the detective a statement concerning the events of the previous night which led to the charges against Schochet.

Steven Schochet testified to the following version of events. On the night of October 3, 1986, Schochet was attending a fraternity party in College Park, Maryland. He left the party to visit a friend named Denise. He had visited this friend frequently at her apartment. When he arrived at his friend's apartment, he was told that she was at a party in another building. Schochet went to the other building where he heard loud music coming from one of the apartments. Assuming that he had found the party, he knocked on the door, and Dovie Sullivan answered. Schochet asked for Denise, and Sullivan told him that she could not hear him because her music was too loud. She invited him in, turned down the music and asked him what he wanted. He told her, and she said she did not know a Denise. When he started to leave, she told Schochet to relax and have a drink. She fixed him a coke, and they began to talk. She began to kiss him, then unzipped his pants and performed fellatio on him. She invited him to her bedroom, and there they had consensual sexual intercourse. Schochet testified that at no time did he have or attempt to have anal intercourse with her.

The next morning, Schochet remained in Sullivan's bedroom at her request while she sent her daughter off to school. He went back to sleep, and later he left when she asked him to. He went home and there discovered that he had contracted "crabs." Schochet went back to Sullivan's apartment to ask if she would take him to a doctor and pay for the examination and treatment. She would not give him the money or take him to the doctor. Schochet testified that he felt used and angry; in retaliation he called the police and falsely reported that Sullivan was abusing her daughter.

Following the presentation of evidence and the denial of Schochet's motion for judgment of acquittal, the defense requested the court to instruct the jury that, under the circumstances of the case, consent was a defense to the seventh and eighth counts charging sodomy and fellatio. Defense counsel argued that the criminal statutes did not apply to consensual conduct "between two heterosexual adults, in the privacy of one of their homes." The court denied the request. The court also denied defense counsel's request to argue to the jury that consent was a defense to the charges in counts seven and eight.

In the court's instructions with regard to counts one through six, the court informed the jury concerning the need for the prosecution to prove lack of consent and force or threat of force. For example, with regard to count six, charging second degree sexual offense based on fellatio, the court instructed the jury in part as follows:

"In order to convict the Defendant of second degree sexual offense the State must prove:

"One: That the Defendant committed fellatio ... with Ms. Sullivan.

"Two: That the act was committed by force or threat of force.

"Three: That the act was committed without the consent of Ms. Sullivan."

After defining "fellatio," the court went on:

"The amount of force necessary depends upon the circumstances. No particular amount of force is required, but it must be sufficient to overcome the resistance of the victim.

"You must be satisfied that the victim either resisted, and the resistance was overcome by force, or threat of force,...

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