State v. Risen

• Decision Date: 26 September 1951
• Citation: 192 Or. 557,235 P.2d 764
• Parties: STATE v. RISEN.
• Court: Oregon Supreme Court

Page 764

235 P.2d 764

192 Or. 557

STATE v. RISEN.

Supreme Court of Oregon.

Sept. 26, 1951.

Mervin W. Brink, of Hillsboro, and Leo Levenson, of Portland (W. C. Schwenn, of Hillsboro, on the brief), for appellant.

G. Russell Morgan, Dist. Atty., of Washington County, Hillsboro for respondent.

Before BRAND, Chief Justice, and HAY, ROSSMAN, LATOURETTE and WARNER, Justices.

HAY, Justice.

Adolph Risen has appealed from a judgment of conviction of the crime of rape. The prosecuting witness was Alene Risen, his wife's daughter, who, at the time of the commission of the crime, was barely 19 years old. Defendant's age does not appear in the record, but, as he and Alene's mother had been husband and wife ever since Alene was about a year and a half old, we presume that he is of middle age.

Defendant's family consisted of his wife, two minor sons, a daughter nine years old, and Alene. Alene had apparently adopted her step-father's surname, although there is no evidence that she had been adopted by him.

Alene and her younger sister slept together in a room on the second floor of the family dwelling. They were in the habit of sleeping with their bedroom door locked. During the night of the day mentioned in the indictment, defendant entered the girls' bedroom through a window, access to which he gained by means of a ladder which he placed against the wall of the house. Alene testified that defendant got in bed with her, slapped her, told her not to wake her sister, and asked her if she 'was going to do it.' She refused, but he 'fought and pulled her around' until he got her on her back. She tried to talk to her sister, but was unable to do so as he had his arms around her neck so that she could not turn her head. His forearm was held under her chin. She struggled to get loose and to get out of the bed. Defendant did not choke her or have his hand over her mouth, but she admitted that she made no outcry. She said that she was just scared and has been scared ever since. Despite her resistance, the defendant was able to accomplish his purpose.

At the close of the state's case defendant moved for a directed verdict in his favor on the grounds that the state had failed substantially to prove the material allegations of the indictment, and particularly that there was no material, substantial evidence of the use of force. At the conclusion of the case he renewed his motion. Both motions were denied. He assigns such denial as error, contending that there was no substantial evidence that the prosecuting witness resisted his advances and that her resistance was overcome by force.

Defendant admits having entered the girls' bedroom and having had sexual intercourse with Alene. He claims that she consented to the intercourse. Alene denies this.

To constitute rape the act must have been committed forcibly and without the consent of the woman. State v. Gilson, 113 Or. 202, 206, 232 P. 621; 44 Am.Jur., Rape, § 8. The woman must resist by more than mere words. Her resistance must be reasonably proportionate to her strength and her opportunities. It must not be a mere pretended resistance, but in good faith and continued to the extent of the woman's ability until the act has been consummated. 44 Am.Jur., Rape, § 7; People v. Dohring, 59 N.Y. 374, 17 Am.Rep. 349, 355; Mills v. United States, 164 U.S. 644, 648, 17 S.Ct. 210, 41 L.Ed. 584; Brown v. State, 127 Wis. 193, 199, 106 N.W. 536; Bailey v. Commonwealth, 82 Va. 107, 3 Am.St.Rep. 87, 89. Those are the law's requirements in the case of a woman 'in the normal condition, awake, mentally competent, and not in fear.' 2 Bishop on Criminal Law, 9th ed, § 1122(5). If the evidence does not show that the woman resisted to the utmost extent of which she was capable, the jury may infer that, at some time during the course of the act, it was not against her will. Nevertheless, the phrase 'the utmost resistance' is a relative one; one woman's resistance may be more violent and prolonged than that of another. Moreover, the attending circumstances may modify the requirements of the rule. People v. Dohring, supra, 59 N.Y. 374, 17 Am.Rep. 349, 356; 44 Am.Jur., Rape, § 7; State v. Hogg, 64 Or. 57, 59, 129 P. 115.

In the present case, the complaining witness was a young girl toward whom for more than 17 years the defendant had stood in loco parentis. At 19 years of age she had attained no more than a sophomore grade in high school. She has some impediment of speech which prevents her from speaking very clearly, and a reading of her testimony indicates that her intelligence is not of a very high order. Upon such a person the constraints of family discipline and the habit of obedience must necessarily exercise a considerable influence. How a more mature and more intelligent woman might have reacted under the circumstances is not in point. The question is, whether or not, under the peculiar circumstances of this case, the resistance which was offered by this girl measured up to the standards prescribed by the rule. The general appearance, demeanor, and degree of intelligence of the girl were observed by and must have been taken into account by the jurors in considering whether or not she resisted to the utmost. The reason why evidence of resistance is important is to show carnal knowledge of the woman by force and nonconsent on her part. State v. Colestock, 41 Or. 9, 12, 67 P. 418. Where submission of a girl is induced 'through the coercion of one whom she is accustomed to obey, such as a parent or one standing in loco parentis,' the law is satisfied with less than a showing of the utmost physical resistance of which she was capable. Hammond v. State, 39 Neb. 252, 58 N.W. 92, 94; State v. Mertz, 129 Wash. 420, 225 P. 62; Hill v. State, 143 Md. 358, 122 A. 251, 253, 254.

'* * * There may be cases in which to place undue emphasis upon its [the rule's] requirement improperly will convert the issue into the trial not of the man but of the woman. Resistance is necessarily relative. It is accordingly not necessarily illogical for courts to apply the general rule requirement of most vigorous resistance to common cases and to modify it in varying degrees and peculiar circumstances and to refuse to apply it to exceptional cases.' State v. Cowing, 99 Minn. 123, 108 N.W. 851, 853, 9 Ann.Cas. 566, 568.

'It must be remembered that from early childhood, * * * this girl has been accustomed to behold in this assailant her only protector and guardian. She has been accustomed from her earliest childhood, not only herself to yield obedience, but to see all others in the domicile yield obedience to this man, who stood to her in the relation of a father, and her feelings of consternation may be imagined * * *.

'This assailant was scarcely in a position to obtain the consent of his step-daughter; and if he, against her directions to the contrary, entered her bed * * * and had sexual intercourse with her against her consent, by force, the crime is complete.

'Should he be permitted to shelter himself behind the circumstance that she made but little actual resistance, and no outcry, under circumstances, to her, so confusing and so intimidating? There he was, one in authority, standing over her. * * *

'That she felt herself in his power, and took too much counsel of her fears and her helplessness, is a matter that he cannot plead in extenuation of his crime. * * *'

Bailey v. Commonwealth, supra, 82 Va. 107, 3 Am.St.Rep. 87, 90.

We are of the opinion that, under the peculiar circumstances of this case, the evidence of nonconsent of the complaining witness was sufficient to take the case to the jury.

Defendant calls attention to the fact that Alene failed to make any complaint of the assault upon her until about a week after the offense, when she reported it to her mother. Failure to make complaint as soon as possible after commission of the offense is a circumstance tending to show consent. 44 Am.Jur., Rape § 103; State v. Birchard, 35 Or. 484, 491, 59 P. 468. Such failure, however, may be explained and excused. A sufficient explanation may be found in the particular circumstances of the case, including the age of the prosecutrix, her degree of intelligence, and threats by the perpetrator of the wrong. State v. Friddles, 62 Or. 209, 211, 123 P. 904; 44 Am.Jur., Rape, § 103. No threats were employed by the accused in this case, but the girl's youth and low degree of intelligence, coupled with the fact that her ravisher was her stepfather, standing towards her in loco parentis, may well have been considered by the jury as sufficient reasons to impel her not to make immediate complaint.

There was evidence that defendant, subsequent to the date alleged in the indictment, made a second attempt to rape the prosecutrix. Defendant asserts that this was evidence of the commission of an offense wholly...