Resistance Rejected as a Factor in Rape Cases : California Supreme Court Acts to Reaffirm 1980 Law Aimed at Removing Barriers to Prosecution

The California Supreme Court, strongly reaffirming a state law designed to aid prosecution of rape cases, ruled Thursday that a victim does not need to show she resisted her assailant.

The justices unanimously reversed a controversial appellate court decision that, they said, erroneously relied on the victim’s lack of resistance in overturning a rape conviction.

The high court said that in amending rape laws in 1980, the Legislature had clearly intended to remove the requirement of resistance. The new law also was aimed at relieving victims of the “potentially dangerous burden” of resisting attackers, it said.

Opinion by Bird

In an opinion by Chief Justice Rose Elizabeth Bird, the court said its ruling is in keeping with a recent trend of eliminating barriers to prosecution of sexual assault cases.

In recent years, the Legislature has limited psychiatric examinations of rape victims, has barred judges from warning jurors that an “unchaste woman” is more likely than others to consent to sexual advances and has largely precluded the use of evidence of a victim’s prior sexual conduct.

In their ruling, the justices reinstated the conviction of a San Francisco man accused of raping a female acquaintance during a marijuana deal at his home.

The state Court of Appeal had overturned the conviction in part on grounds that the man had not specifically threatened physical harm to the woman and that she had acceded to his demands “without any explicit protestation or measurable resistance.”

The appellate decision had drawn strong criticism from law enforcement authorities.

San Francisco Dist. Atty. Arlo Smith had voiced his “deepest concern and dismay” over the ruling. Lawyers for the state attorney general’s office, appealing the decision to the justices, called it “an astonishing legal and factual injustice” and said it plainly disregarded changes in the law by the Legislature.

Deputy Atty. Gen. Stan M. Helfman said Thursday’s ruling, in reaffirming the 1980 amendments, will “help publicize the fact that women need not run the risk of life or limb in order to produce evidence of rape.”

Deputy Public Defender Philip Brooks said that while the law did not require victims to “kick, bite or scream” to substantiate their claims, another jury in this case could have fairly concluded that no rape occurred.

Case Before the Court

In the case before the court, Joaquin Barnes was accused of attacking a woman identified as Marsha M. in May, 1982. Their versions of what occurred conflicted sharply.

Marsha testified that Barnes, in demanding sex, had threatened her with his fists, flexed his muscles and told her that he could make women “do anything I want.”

She said she had submitted out of fear that he would become violent.

Barnes claimed that she had readily consented to his advances. He testified that he had not threatened her, that she had returned his hugs and kisses, and that the two had slept afterward.

The justices said Thursday that while resistance had been a requirement for conviction of forcible rape under law before 1980, the main purpose of the amendments was to eliminate that requirement.

Bird noted that while sociological studies differ over whether women should resist or accede to rapists’ demands, it is at least arguable that resistance “may well increase the risk of bodily injury to the victim.”

In this case, the court said, the jury reasonably could have concluded that Marsha’s fear of physical violence “was genuine and reasonable.”