The state's highest court will consider questions of force and fear in cases when a person reports being a victim of a sexual offense when it hears arguments Thursday in a case stemming from a student's report of a sex crime.
The Court of Appeals is being asked to decide whether there was enough evidence for a jury to conclude that a woman feared being forced into sex after what she described as unwanted sexual contact escalated. The Sun does not identify victims of sexual assault.
"The questions that they are looking at about force are extremely important," said Lisae Jordan, legal director of the Maryland Coalition Against Sexual Assault.
Maryland law requires force or threat of force against the victim and absence of the victim's consent for a conviction.
Jordan said that sexual assault hot lines hear from sex crime victims who said "they've reacted by freezing," so scared that they cannot protest or resist an assailant who has no weapon.
She said she hoped this case would lead to a change in the law, or at least a clarification.
After the student's protests, her attacker's continued sexual contact was enough force to persuade a Somerset County jury to convict Jason Mayers, now 31, according to arguments in legal briefs by the attorney general's office.
Assistant Public Defender David Kennedy, in his legal brief, said the woman had a sexual encounter with Mayers months earlier. The second time, however, the sex was without her consent, but also "without any real non-verbal resistance" and occurred while her roommate was asleep in a bunk above her.
Kennedy said the distinction could be the difference between a conviction for a second-degree sex offense, which requires registering as a sex offender, and possibly an assault conviction.
The student maintained that Mayers, a friend of her apartment-mate's boyfriend, climbed into her bed one night in 2003, smelling of alcohol and marijuana. She testified that despite telling him "no" and pushing him away, he molested her and pulled down her clothing. When the unwanted sexual contact escalated, she said, she went "completely numb" and "froze," and was "horrifically scared" of what the sexual consequences might be. She did not cry out, though her roommate — a woman who testified that she is nearly impossible to rouse other than by shaking — was a few feet away.
Mayers testified that she did not tell him to stop or resist. He said their activities were consensual, according to legal briefs. Mayers was convicted of second-degree assault, and second- and fourth-degree sex offenses. He was sentenced to serve four years in prison. In January, an appeals panel overturned the conviction for a second-degree sex offense.
This is the second time in three years that the Court of Appeals is taking up an issue central to whether a sex crime has been committed. In 2008, judges ruled that when a woman revokes consent after a sex act has begun, the man can face a rape charge. That decision widened the definition of rape.