Assault Without Struggle Can Be Rape, Court Says


The California Supreme Court, broadening the parameters for criminal culpability in rape cases, held Monday that a man may be convicted of rape even if he was unarmed and the victim submitted without a struggle.

The unanimous decision may make it easier for prosecutors to win convictions in rape cases when the victim fails to call for help or resist her assailant.

The court ruled in a 1990 San Diego case in which a 22-year-old woman was raped on the eve of her wedding as she slept at a friend’s house. She said she was too afraid to cry out or struggle.


A jury convicted Hector Iniguez of rape, but a Court of Appeal in San Diego reduced the conviction to sexual battery. The appellate court noted that the woman did not call for help nor did Iniguez threaten her.

“It seems to me that any non-consensual act of penetration is now rape,” said Russell Babcock, an attorney for the defendant, “even though the Legislature did not say that. By the (California) Supreme Court’s decision, as long as it includes elements of fear, it is rape.”

To prove rape, prosecutors must show the act was accomplished through force, violence or fear of immediate harm. The Supreme Court, overturning the Court of Appeal decision, reinstated Iniguez’s rape conviction, saying the evidence supported the victim’s contention of fear.

“Sudden unconsented-to groping, disrobing and ensuing sexual intercourse while one appears to lie sleeping,” wrote Justice Armand Arabian, “is an appalling and intolerable invasion of one’s personal autonomy that, in and of itself, would reasonably cause one to react with fear.”

The victim, Mercy W., went to the home of a close family friend on June 15, 1990, so the woman could help her get ready for her wedding the next day. She met Iniguez, her friend’s fiance, for the first time that night.

Iniguez had consumed a couple of beers and a pint of whiskey before going to the house. Once there he and the two women shared pizza and wine. Mercy went to bed in the living room, sleeping in her clothes on top of a sleeping bag.


The bride-to-be was lying on her stomach when she awoke between 1 and 2 a.m. and spied Iniguez, naked, approach her from behind. Without speaking, he pulled down her pants, touched her buttocks and had sexual intercourse with her for about one minute. She weighed 105 pounds, he weighed 205 pounds.

Mercy, crying so hard she could barely make herself understood, telephoned a friend to pick her up. The friend found her hiding outside in the bushes.

In her distress, Mercy asked her if the word “rape” was written on her forehead, and the friend testified that she had to dissuade her from bathing before going to the police. An examination concluded that intercourse had occurred within the past few hours.

Despite the ordeal, the bride got married the next day. Police arrested Iniguez, and he admitted that Mercy had not consented to sex. But his attorney argued that Iniguez could not be convicted of rape because intercourse had not been forced or accomplished through fear.

“What he was doing,” the defense attorney argued during the trial, “was taking advantage, in a drunken way, of a situation where somebody appeared to be out of it.”

Before 1980, a person could not be convicted of rape unless the victim resisted or was prevented from resisting by a weapon or other force. The Legislature subsequently removed those requirements.

But the San Diego Court of Appeal argued that Mercy had been “unable to articulate an experience of fear” of immediate injury. The sexual attack was “singularly unusual,” the court said, “in terms of its ease of facilitation, causing no struggle, no injury, no abrasions or other marks, and lasting, as the victim testified, ‘maybe a minute.’ ”

Regardless of the ease with which a rape is committed, the California Supreme Court said, a victim’s fear may be inferred from the circumstances.

“There is no requirement that the victim say, ‘I am afraid, please stop,’ ” Arabian wrote, “when it is the defendant who has created the circumstances that have so paralyzed the victim in fear and thereby submission.”

Babcock, Iniguez’s attorney, said the ruling “draws the spectrum of rape crimes much broader.”

A convicted rapist faces three, six or eight years in prison, depending on the decision of the judge. Iniguez had originally been sentenced to six years. Sexual battery can be punished with a two-year sentence, with the possibility of probation, Babcock said.

He said Iniguez is a professional man in his late 30s who is now out on bail. Babcock said he probably will appeal the rape conviction on other issues, such as jury instructions, and may take the case up to the U.S. Supreme Court.

The deputy attorney general who argued against Iniguez could not be reached for comment.