All too often we hear about crimes of sexual violence where the victim claims that he or she was too intoxicated to consent, and the defendant claims the activity was consensual. How Maryland law addresses this situation was explored in a recent unreported opinion from Maryland’s intermediate appellate Court in the case of Andre Marquis Howard v. State of Maryland.
The opinion indicates that the victim shared a townhome with her friend and the friend’s husband. After a night of the three of them drinking together, the victim passed out on the couch. She testified the next thing she remembered was waking up in her bedroom with the defendant having sex with her, and then passing out again. The next day she called her roommate to advise that her husband had raped her. Two days later, she went to a hospital to be examined, and some time later, after the defendant moved out of the home she reported to the police that the defendant had raped her.
The defendant testified at trial that after they had been partying, his wife refused his sexual advances, and he then had to help the alleged victim up to her room. He claimed she disrobed and initiated sex, and that after beginning consensual activity he felt guilty and stopped. The defendant claimed the victim was conscious when he left the room. A jury convicted the defendant of second degree rape.
On appeal, the Court of Special Appeals noted that second degree rape can include the situation where the victim “is a mentally deficient individual, a mentally incapacitated individual or a physically helpless individual,” which the defendant knew or reasonably should have known. The last defines “mentally incapacitated” to include a person who, because of the influence of a drug or intoxicating substance, is rendered substantially incapable of appreciating the nature of the offending conduct or resisting. A person may be “physically helpless” if he or she is unconscious or physically unable to resist or communicate an unwillingness to submit.
Here, the Court found sufficient evidence to support the victim’s testimony that she was unconscious when the defendant began the act, and was so intoxicated as to be either mentally incapacitated or physically helpless. The conviction was therefore upheld.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.