High Court to Rule on Issue of Forcible Rape : Crime: Victim did not resist attack. She testified that she was frozen with fear.

The state Supreme Court agreed Thursday to decide whether a man can be convicted of forcible rape when the alleged victim says she did not resist because she was frozen with fear.

In a brief order, the justices said they will review a decision by a state appellate court that overturned the rape conviction of a San Diego man because of insufficient evidence that the victim believed she faced “immediate bodily injury.”

State prosecutors had appealed the ruling, saying the appellate panel had improperly “faulted the victim for her lack of resistance.” Studies show that many victims resist attackers, but others “freeze” and become helpless because of numbing fear, the prosecutors said.

Russell S. Babcock of San Diego, the attorney for the defendant, Hector Guillermo Iniguez, defended the appellate court’s decision and said it had been widely misunderstood. Under the ruling, he noted, Iniguez still faces conviction on a lesser charge--sexual battery--and could go to prison for two years or more.

“The intent of the Legislature was that the charge of forcible rape should be reserved to cases where there is actual use of force,” Babcock said Thursday. “The conviction wrongly placed Mr. Iniguez in the category of assailants who choke their victims or use other types of force.”

The case arose in June, 1990, when a woman identified in court papers as Mercy W., on the night before her wedding, went to spend the night with a female friend.

According to testimony, Iniguez, the friend’s boyfriend, arrived tipsy from beer and whiskey. The three dined on pizza and wine and then retired for the night. At about 2 a.m., Mercy W. testified later, Iniguez entered the room where she was sleeping, pulled down her clothing and engaged in sexual intercourse for about one minute.

When he left the room, she fled the apartment, telephoned another friend to come get her and later reached her fiance, who called police. She was married the next day, with neither Iniguez nor his girlfriend in attendance. Iniguez later admitted he had been drunk and had sex with the woman, and he was charged with forcible rape.

At trial, Mercy W. said that she did not protest or resist because she was afraid. Why? she was asked. “Because I didn’t know how it was at first and I just wanted to get on with my wedding plans the next day,” she said. “I was afraid, so I just laid there.”

Iniguez was convicted of forcible rape and sentenced to six years in prison. But a state Court of Appeal in San Diego ruled last November that there was not enough evidence to support that charge and reduced Iniguez’s conviction to sexual battery.

Appellate Justice Charles Froehlich Jr., joined by Justices Daniel J. Kremer and Don R. Work, noted that a conviction of forcible rape requires proof of sexual intercourse against a person’s will by force, violence or fear of immediate bodily injury.

In this case, the panel said, there was no evidence of threats, struggle or injury--not even a spoken word. Mercy W. likely had been surprised, insulted, intimidated and outraged, the court said, but “was unable to articulate an experience of fear of immediate and unlawful bodily injury.”

In their appeal of the decision, prosecutors said the appeal court “unjustly rewarded” Iniguez by reducing the conviction and “impermissibly heaped further punishment on the rape victim.”

The woman, who weighed 105 pounds, understandably reacted with “frozen fright” to a 205-pound stranger attacking her in the night, the prosecutors said. A state attorney declined further comment Thursday.

In its order, the high court said it would decide whether there was sufficient evidence of either force or fear to support the verdict of forcible rape. No hearing date was set.