reasoning that error did not affect defendant’s substantial rights where there were “other factors in the case which show that the defendant ha[d] been given a fair trial”
How later courts described this case
- reasoning that error did not affect defendant’s substantial rights where there were “other factors in the case which show that the defendant ha[d] been given a fair trial”
- observing that "a rule of law requiring corroboration has probably little actual influence upon the jurors’ minds over and above the ordinary caution and suspicion which would naturally suggest itself for such charges”
- denial of severance motion not abuse of discretion where two rapes with which defendant was charged involved ride offers by driver of light blue Volkswagen, change of driver's attitude from a friendly to threatening one, successful demand for sexual intercourse and, finally, return of victim to her destination
- "It is not the function of an appellate court to determine guilt or innocence upon its own review of the record. That judgment is reserved exclusively for the jury, and the court cannot substitute its own subjective evaluation of the record for that of the jury"
Written by the judges who cited it.
The opinion
MACK, Associate Judge
(concurring in part and dissenting in part) :
I concur in the holding of the majority that the trial court did not abuse its discretion in denying severance of the two rape counts, and that the motion for a judgment of acquittal was properly denied. I likewise emphatically reject any notion that a victim of rape or other sex related offenses is presumptively lacking in credence. See ante, at 344. It does not follow that I can view with approval the mandate of the majority summarily striking in this case the corroborative evidence rule in future cases of rape. The problems created by such a course already are exemplified by the difficulty of this court in defining the kind of victim whose testimony must still be suspect, ante, at 345, 348, and the differences of thought as to whether the appellant in this case, having been denied the corroborative instruction at a time that it was required, is entitled to a new trial. Ante, at 341, 345.
There are yet more serious problems surfacing by reason of the court’s action under these circumstances. The majority has stated that the evidentiary and instructional requirement is being eliminated because of its demeaning implications — thus candidly and commendably recognizing that the criminal law must not be blind to the rights of women. The rights of women *349 are not best served, however, by a mere pronouncement that dicta traced to the 17th century writings of Lord Chief Justice Hale have no place in modern jurisprudence. Rather, such rights are served and preserved by adopting measures which insure the fair and equitable administration of justice. I have grave doubt that the abolishment of the corroboration rule, without more, will make the ordeal of women less demeaning or the administration of justice more equitable. I fear that the majority, without assessing the consequences, is giving “lip service” to a complex problem ripe for legislative reform. 1
The rule which the majority dispenses with was apparently imposed in this jurisdiction in 1902. 2 I think it is an oversimplification to suggest that, in this country at least, such a rule was adopted solely because of entrenched notions concerning women. It was thought to be a safeguard against unjust conviction 3 — an assumption which cannot be divorced from the practical realities that traditionally the penalty for rape has been a severe one; that unlike other crimes carrying severe penalties, there have been no delineated degrees of rape; and that factual circumstances of rape, more than those of any other crime, readily lend themselves to strong and different interpretations depending upon one’s station or experiences in life, including age, sex, race and environment. See generally Hearings to Revise Process for Victims of Rape and Prosecution for Rape in the District of Columbia Before the D. C. City Council Commission on Public Safety (Sept. 18-20, 1973). These factors account for the phenomenon — accepted as a fact by both appellant and appellee — that modern day jurors view rape with suspicion. See H. Kalven & H. Zeisel, The American Jury 249-54 (1966). 4 The same factors *350 may account for statistics showing- that, nationwide, 89% of the 455 men executed for rape between 1930 and 1969 were black men. See Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365 , 1380 n. 103 (1972).
Significantly, although a majority of the states do not have a corroboration requirement, the conviction rate in the United States as a whole is considerably lower in rape cases than in cases involving other violent crimes Of those prosecuted for rape in 1974, 35% were found guilty of the substantive offense. Uniform Crime Reports at 24. Comparable figures for other crimes are murder — 45%, Id. at 19; aggravated assault — 43%, Id. at 22; and robbery — 45%, Id. at 26.
In our jurisdiction the courts have avoided rigid application of the corroborative evidence rule. See In re W. E. P., D.C. App., 318 A.2d 286 (1974); Moore v. United States, D.C.App., 306 A.2d 278 (1973); United States v. Gray, 155 U.S. App.D.C. 275, 477 F.2d 444 (1973). 5 It is not necessary to introduce evidence to corroborate each and every element of the offense. United States v. Gray, supra; cf. People v. Masse, 5 N.Y.2d 217 , 182 N.Y.S. 2d 821 , 156 N.E.2d 452 (1959). Not only has the quantum of proof been flexible under the facts of each case, 6 but the requirement in effect has permitted the introduction of evidence which might otherwise be objected to as inadmissible. 7 In the instant case, for example, the court followed precedent in admitting hearsay testimony from after-the-fact confidants of the victims (including a friend, a minister and a lawyer). In view of this liberal application it can hardly be suggested that the rule has been an impediment to conviction in this jurisdiction, 8 nor would available statistics support such a suggestion. To *351 the contrary, what statistics there are available in this jurisdiction indicate that the conviction rate for rape is substantially higher in the District of Columbia than in the nation as a whole, 9 although a majority of states have never required corroboration.
The rule undoubtedly plays some part in the demeaning implications connected with the severe physiological and psychological trauma of rape and its aftermath, during which a female victim may be exposed to searching and embarrassing inquiry from law enforcement officers or reluctant or insensitive treatment from medical personnel. The question arises, however, as to whether the elimination of the judicial requirement, without other reforms, would subject a victim to even closer scrutiny during the investigatory stages 10 and even harsher cross-examination by defense counsel at trial. One of the more degrading experiences for a victim, for example, is that of being cross-examined as to prior sexual conduct. Moreover, with the corroborative requirement eliminated, could the kind of supportive evidence, admitted in the instant case, be successfully challenged as inadmissible? If the prosecution chooses not to seek or to introduce corroborative evidence, would be the risk of attitudinal decisions by jurors be increased? With these questions unanswered, and with the question remaining as to whether the Rule has afforded any protection for the innocent accused, I feel that the action of the court is ill-timed.
Fortunately for us the overall problems which arise in the District of Columbia in connection with rape have been exhaustively explored by a Task Force reporting to the Public Safety Committee of the City Council. Hearings have been held and reform recommended, directed not only to the care and treatment of rape victims but also to the prosecution of offenders. In the latter regard, it has been recommended, inter alia, that concomitantly with elimination of the corrboration requirement, the penalty for rape be lowered, the crime be redefined and delineated as to degree, and standards of proof be reexamined. See D. C. City Council, Report and Proposals Regarding Rape and Rape Victims in the District of Columbia (Dec. 16, 1974). In view of the action which the court takes today, I can only hope that legislative revisions not be long in coming 11
*352 I, too, believe that rape should be treated as any other crime of violence. The stark reality is, however, that in our society, it has not been so treated. Rape is thought to be one of the most underreport-ed crimes due primarily to fear and embarrassment but also due to the severity of the sentence. 12 As long as there remains an inordinately severe penalty for rape — as long as there remains racial hosility — I feel as did Chief Judge Bazelon (concurring in United States v. Wiley, 160 U.S.App.D.C. 281, 289-90 , 492 F.2d 547, 555-56 (1973)), that the liberally applied corroborative rule of this jurisdiction is the best protection against attitudinal judgments which operate in derogation of the protection of the innocent — whether that innocent be a victimized female or a falsely accused male. I would retain the rule in future rape cases and reverse for failure to give the required instruction.
. In 1974, there were 41 rapes per 100,000 inhabitants in the District of Columbia metropolitan area. F.B.I., 1974 Uniform Crime Reports 89 (1975) [hereinafter Uniform Crime Reports], Nationwide, the number of reported rapes increased 8% in 1974 alone, and since 1969, the number of rapes per 100,000 inhabitants has increased 41.8%. Id. at 10. Also nationwide, rape is recognized as one of the most underreported and least successfully prosecuted violent crimes. Id. at 22. See' note 4 infra and accompanying text.
. The earliest known reference to the need for corroborative evidence in this jurisdiction is found in a discussion concerning the admissibility of certain hearsay testimony to corroborate a rape charge in Lyles v. United States, 20 App.D.C. 559, 563 (1902). The requirement was expressly imposed in Kidwell v. United States, 38 App.D.C. 566, 573 (1912), in which the court reversed a conviction supported solely by the complainant’s testimony, stating that in prior similar cases upholding convictions, the circumstances had at least indirectly corroborated the testimony of the complainant. Subsequent eases interpreted Kidwell to require “corroboration, in the sense that there must be circumstances in proof which tend to support the prosecutrix’ story . . . .” Ewing v. United States, 77 U.S.App.D.C. 14, 17 , 135 F.2d 633, 636 (1942), cert. denied, 318 U.S. 776 , 63 S.Ct. 829 , 87 L.Ed. 1145 (1943). Accord, Walker v. United States, 96 U.S.App.D.C. 148 , 152, 223 F.2d 613, 617 (1955).
. A full corroboration requirement has been judicially imposed in two jurisdictions, the District of Columbia and Nebraska. Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365 , 1367 n. 14 (1972) [hereinafter The Rape Corroboration Requirement]. Although California and today the District of Columbia have, by judicial decision, abolished the rule, at least two jurisdictions, Georgia and Idaho, have recently enacted legislation adopting a corroboration requirement in rape cases. Id. at 1372 n. 52. The Model Penal Code, approved by the American Law Institute, also contains a provision requiring at least circumstantial corroboration of sexual offenses. Model Penal Code § 213.6(5) (1962). See 10 Uniform Laws Annotated 546 (1974).
. Studies show that a jury is much more likely to convict in a case in which there is evidence of extrinsic violence, in which several assailants are involved, or in which the victim and the assailant are complete strangers at the time of the event. Kalven & Zeisel, supra at 252-54. Kalven and Zeisel conclude that the jury redefines rape, either acquitting or convicting of a lesser offense where it perceives that the victim has assumed the risk. Id.
. See also United States v. Jones, 155 U.S.App.D.C. 328 , 477 F.2d 1213 (1973) ; United States v. Hines, 148 U.S.App.D.C. 441 , 460 F.2d 949 (1972) ; United States v. Cambrill, 146 U.S.App.D.C. 72 , 449 F.2d 1148 (1971) ; United States v. Huff, 143 U.S.App.D.C. 163 , 442 F.2d 885 (1971) ; United States v. Jenkins, 140 U.S.App.D.C. 392 , 436 F.2d 140 (1970) ; United States v. Terry, 137 U.S. App.D.C. 267, 422 F.2d 704 (1970) ; Washington v. United States, 136 U.S.App.D.C. 54 , 419 F.2d 636 (1969) ; Borum v. United States, 133 U.S.App.D.C. 147 , 409 F.2d 433 (1967), cert. denied, 395 U.S. 916 , 89 S.Ct. 1765 , 23 L.Ed.2d 230 (1969) ; Calhoun v. United States, 130 U.S.App.D.C. 266 , 399 F.2d 999 (1968) ; Thomas v. United States, 128 U.S.App.D.C. 233 , 387 F.2d 191 (1967).
. The standard for determining the sufficiency of the evidence in a rape case has been expressed as follows:
[T]he independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim’s account of the crime was not a fabrication. This rule is a flexible one, and the particular quantum of proof required will necessarily vary from case to case depending upon for example, the age and impressionability of the prosecutrix and the presence or absence of any apparent motive to falsify or exaggerate.
United States v. Cray, supra, 155 U.S.App. D.C. at 276, 477 F.2d at 455; accord, United States v. Terry, supra, 137 U.S.App.D.C. at 270-71, 422 F.2d at 707-08 . Corroborative evidence consists of “any evidence, outside of the complainant’s testimony, which has probative value — any evidence which could convince the trier of fact that the crime was committed. . . It is enough if [it] may tend, even in a slight degree, to elucidate the inquiry . . . .” United States v. Terry, supra at 270, 422 F.2d at 707 , quoting Borum v. United States, supra, 133 U.S.App.D.C. at 153, 409 F.2d at 439 .
. For example, in State v. Jonas, 18 Crim. Law Rep. 2052 (Conn. Sept. 16, 1975), a statutory corroboration requirement was held to create an exception to the general rule that evidence of other crimes is inadmissible. Thus, “other crimes” evidence was admissible to corroborate a rape charge, but inadmissible with respect to the joined charges of burglary and threatening, thereby requiring a separate trial for the latter offenses.
. It appears that in the past decade there have been no cases in this jurisdiction reversing a rape conviction on the ground of insufficient corroboration. Reversals for lack of corroboration in recent cases involving other sexual offenses have been primarily due to “irresponsible” conduct on the part of the government. See United States n. Wiley, 160 U.S.App.D.C. 281, 285 , 492 F.2d 547, 551 (1973) (carnal knowledge) in which the government knowingly failed to subpoena the physician who had examined the complainant. *351 See also United States v. Medley, 146 U.S. App.D.C. 396, 452 F.2d 1325 (1971) (assault with intent to commit rape) (complainant not called to testify) ; cf. United States v. Tremble, 152 U.S.App.D.C. 363 , 470 F.2d 1272 (1972) (assault with intent to commit rape) (no direct or corroborative evidence of intent to commit rape) ; Coltrane v. United States, 135 U.S.App.D.C. 295 , 418 F.2d 1131 (1969) (sodomy, indecent liberties) (no corroborative evidence for six of seven counts involving same 15-year-old complainant). But see Allison v. United States, 133 U.S.App.D.C. 159 , 409 F.2d 445 (1969) (assault with intent to commit carnal knowledge) (no corroboraton of intent), continued validity questioned in United States v. Gray, supra.
.The latest available statistics in this jurisdiction — estimates for the years 1971 and 1972 — show that 45.7 of every 100 persons arrested for rape in the District of Columbia were convicted of rape or a lesser offense. D.C. City Council, Report of the Public Safety Committee Task Force on Rape 28 (July 9, 1973). The comparable national rates were 30.6 convictions per 100 arrests in 1974, see Uniform Crime Reports at 24, and 33.5 convictions per 100 arrests in 1970. See Note, Rape and Rape Laws: Sexism in Society and Law, 61 Cal.L.Rev. 919, 927 n. 42 (1973). Of those prosecuted for rape in the District of Columbia, 92.5% were convicted of rape or a lesser offense. 1973 Task Force Report, supra at 28.
. Suggested alternatives to the corroboration requirement include mandatory psychiatric examination, mandatory physical examination, and/or lie detector interrogation of the complainant. See The Rape Corroboration Requirement at 1386-87.
. Although S. 1, the proposed revision of the criminal sections of the United States Code, and also proposed rape reform legislation in Maryland do not have provisions requiring corroborative evidence in rape eases, both incorporate many of the revisions suggested in this jurisdiction. See S. 1, 94th Cong., 2d Sess., §§ 1641-46, 2301 (1976) ; Senate Bill No. 358, Senate of Maryland *352 (1976). For example, S. 1 redefines the crime and creates five different sexual offenses, with a maximum penalty of fifteen years imprisonment. S. 1 supra. The Maryland bill provides, inter alia, for three degrees of “sexual offenses”, each with a different maximum punishment. Bill No. 358, supra.
. See Hearings Before D. C. City Council Commission on Public Safety, supra at 82, 104-05 (Sept. 19, 1973).
The maximum penalty for rape in the District of Columbia is life imprisonment. D.C. Code 1973, § 22-2801.