Brown v. State
106 N.W. 536 (1906)
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Rule of Law:
To constitute the crime of rape, the state must prove beyond a reasonable doubt not only the victim's lack of consent but also that she exercised the most vehement physical resistance within her power to prevent penetration, which must persist until the act is consummated.
Facts:
- The defendant and the prosecutrix engaged in a sexual act.
- The prosecutrix testified that when first seized, she said "let me go" and made inarticulate screams.
- Throughout the encounter, she testified generally that she "tried as hard as she could to get away."
- The prosecutrix's testimony did not include any specific details of physical resistance, such as using her hands, limbs, or pelvic muscles to prevent penetration.
- A physical examination of the prosecutrix after the event revealed no bruises or scratches.
- No signs of a struggle, such as scratches or marks, were found on the defendant.
- The prosecutrix's outer clothing was not torn or in disarray, and the only damage was a one-inch rip in her underwear, which was not shown to be significant of force.
- After the encounter, the prosecutrix arranged her underclothing, at which point she discovered blood and then sought help.
Procedural Posture:
- The State filed an information charging the defendant with rape in a Wisconsin trial court.
- The defendant was tried before a jury.
- The jury returned a verdict of guilty.
- The defendant filed a motion for a new trial, which the trial court denied.
- The trial court entered a judgment of conviction and sentenced the defendant.
- The defendant (as plaintiff in error) appealed the conviction to the Supreme Court of Wisconsin.
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Issue:
Does a prosecutrix's testimony, consisting of general statements that she tried to get away and verbal protests, without specific evidence of physical acts of resistance or corroborating physical evidence of a struggle, suffice to prove the element of utmost resistance required for a rape conviction?
Opinions:
Majority - Dodge, J.
No, this evidence does not suffice to prove the required element of utmost resistance. For the crime of rape, there must be an entire absence of mental consent and the most vehement exercise of every physical means within the woman's power to resist penetration, persisting until consummation. Mere general statements by the prosecutrix that she 'did her utmost' are insufficient; she must relate the specific acts of resistance so the jury can judge their sufficiency. The court distinguished between 'escape' and 'resistance,' noting that resistance is opposing force with force, not merely retreating from it. The prosecutrix's narrative focused only on escape and failed to mention any use of her hands, limbs, or other means to physically oppose the defendant. The complete lack of corroborating evidence, such as bruises, scratches on either party, or disheveled clothing, renders the claim of a forcible sexual act 'well-nigh incredible.' Therefore, the evidence of resistance was legally insufficient to sustain the conviction.
Analysis:
This case exemplifies the historically stringent 'utmost resistance' standard for rape, which placed a heavy burden on the victim to prove she physically fought her attacker to the fullest extent of her ability. The court's reasoning reflects a deep judicial skepticism toward rape allegations, prioritizing objective, physical evidence of a struggle over the victim's testimony of non-consent. This decision establishes a high evidentiary bar, requiring specific narration of resistive acts and strong corroborating evidence. This standard has been widely abandoned in modern jurisprudence, which has shifted the legal focus from the victim's resistance to the perpetrator's coercive conduct and the victim's lack of affirmative consent.
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