Opinion
Argued May 3, 1972
Decided July 7, 1972
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, RAYMOND J. MINO, J.
Barry S. Wine for appellant. Francis J. Vogt, District Attorney ( Edward M.P. Greene of counsel), for respondent.
Complainant, a 17-year-old school girl, willingly, but apparently unwittingly, accepted a "lift" from a male stranger in the early evening on October 13, 1968. By her own testimony, she refers to a two-hour stay with her assailant before and after an act of forcible intercourse at some secluded spot near her home. When finally released, she ran home and reported the incident to her parents who, in turn, notified the State Police.
There is no real doubt that the record affords sufficient corroboration that intercourse was committed by forcible compulsion. The complainant's mother testified to her daughter's bloodied mouth, bruised lips, disheveled appearance and apparent emotional distress. Independent medical proof of the complainant's condition shortly after the incident occurred, verified that coitus had taken place and that the complainant had been physically abused (see, e.g., People v. Masse, 5 N.Y.2d 217; People v. Deitsch, 237 N.Y. 300; People v. Marshall, 5 A.D.2d 352, affd. 6 N.Y.2d 823); and a mass of fine lacerations about the back and "vegetable matter" compatible with leaves and small branches, tangled in the complainant's pubic hair is corroborative of the fact that the complainant had been dragged along and assaulted on the open ground.
Because the law requires that the victim's testimony be corroborated in each of the three material elements of the offense ( People v. Page, 162 N.Y. 272; People v. Downs, 236 N.Y. 306; People v. Masse, 5 N.Y.2d 217, supra; see, also, Penal Law, § 130.15) — force or lack of consent, penetration and identity — there must further be some independent showing that it was the defendant who committed the crime before the conviction will be sustained (Penal Law, § 130.15; People v. Masse, 5 N.Y.2d 217, supra; People v. Page, 162 N.Y. 272, 274-275, supra; People v. Croes, 285 N.Y. 279; People v. Marshall, 5 A.D.2d 352, affd. 6 N.Y.2d 823, supra).
Defendant has never admitted to having intercourse with the complainant, and at the trial offered an alibi as to his whereabouts on the night in question. No independent testimony has been introduced to corroborate the identity of the alleged rapist; and while real evidence might suffice (see People v. Marshall, 5 A.D.2d 352, 353, affd. 6 N.Y.2d 823, supra), the only evidence which would place the defendant at the scene of the crime is that of the complainant, set forth along with a vivid description of the defendant, his car — the one allegedly used to transport the victim to the scene of the crime — and a ring said to have been worn by the attacker and identical to one confiscated from the defendant at the time of his arrest. On their direct case, the People have offered no proof which would place the car, concededly the defendant's, or the defendant himself, in or about the vicinity where the alleged rape occurred on the night in question (cf. People v. Hutchings, 36 A.D.2d 659). Beyond the victim's own testimony that she was, in fact, inside the defendant's car, an allegation which is surely buttressed by her detailed descriptions, there is no independent evidence, either circumstantial or direct, to support the charge that the defendant was her assailant (see People v. Terwilliger, 74 Hun 310, affd. on opn. below 142 N.Y. 629; People v. Deitsch, 237 N.Y. 300, supra).
As a practical matter, and on the basis of the evidence adduced, the jury, logically and reasonably could infer that the complaining witness was raped. Absent independent corroboration of the perpetrator's identity, however, the law requires that the victim's testimony linking the defendant to the crime be discounted; and, on the basis of the facts, the conviction must fail ( People v. Page, 162 N.Y. 272, 274-275, supra; People v. Downs, 236 N.Y. 306, supra; People v. Anthony, 293 N.Y. 649). The order appealed from should be reversed and a new trial granted.
The statutory requirement of corroboration in all rape cases and under the revised Penal Law in crimes prosecuted under article 130, as well as the judicially created rule extending the corroboration requirement to crimes intrinsically related to rape or committed in aid of effecting a rape (Penal Law, § 130.15; People v. Lo Verde, 7 N.Y.2d 114; People v. English, 16 N.Y.2d 719; see, also, People v. Moore, 23 N.Y.2d 565, 567-568), finds plausible, if not redoubtable, justification in protecting against the danger of false accusations ( People v. Yannucci, 258 App. Div. 171, 173; Matter of Sam "F" and Bobby "S", 68 Misc.2d 244; 7 Wigmore, Evidence [3d ed.], § 2061, p. 354; cf. People v. Radunovic, 21 N.Y.2d 186, 191, concurring opn. BREITEL, J.). In terms of its objectives, however, the statutory rule is of minuscule practical value (7 Wigmore, Evidence [3d ed.], § 2061, p. 354); and in its overall effect continues to threaten disconcerting, if not mischievous consequences ( People v. Radunovic, 21 N.Y.2d 186, 193, supra, dissenting opn. SCILEPPI, J.). Wigmore, apprehending the threat of false accusations, recognizes that the purpose of the rule is accomplished by the Trial Judge's power to set aside the verdict upon the ground of insufficient evidence (7 Wigmore, Evidence [3d ed.], § 2061, p. 354). Indeed, it imposes itself as a broad testimonial disability, when common experience and ordinary suspicion already suggest circumspection ( Matter of Sam "F" and Bobby "S", 68 Misc.2d 244, supra; see, also, 7 Wigmore, Evidence [3d ed.], § 2061, p. 354; cf. People v. Radunovic, 21 N.Y.2d 186, 192, concurring opn. BREITEL, J., supra). Although we need not canvass either the efforts of the overwhelming majority of States which labor without such an "over evidence requirement" (See Matter of Sam "F" and Bobby "S", 68 Misc.2d 244, supra; generally the complainant's uncorroborated testimony, if not contradictory or incredible, or inherently improbable, may be sufficient to sustain a conviction, while a more stringent standard, requiring corroboration would apply where that testimony is contradictory or inherently unreliable or improbable; see, also, 75 C.J.S., Rape, § 78; 7 Wigmore, Evidence [3d ed.], § 2061, esp. n. 1, at pp. 342-343), or the myriad criticism which the rule's detractors would inveigh against it, some of its more egregious flaws warrant at least passing comment.
First, and perhaps foremost, is the fact that in imposing an evidentiary standard more befitting a public event, the law necessarily frustrates the prosecution of an inherently furtive act. Secondly, it establishes a system of false distinctions between offenses committed most often against the person of a woman and other equally serious charges where "the motivation for falsehood or occasion for inaccuracy is * * * [as] great, and the disproof difficult" ( People v. Radunovic, 21 N.Y.2d 186, 192, concurring opn. BREITEL, J., supra: specifying fraud, prostitution, illegitimacy and filiation proceedings, alleged gifts from the now-dead and between those in a confidential relationship). Predicated on an earlier ethic which held such activities unusually heinous, the distinction was once arguably proper; by more contemporary standards, it, nevertheless, expresses almost an irrational doubt toward the claims of women who have been victimized sexually, with virtually nothing to commend its continued use.
Legislation, amending section 130.15 of the Penal Law, has recently been signed into law and, as of its effective date, no longer requires corroboration of the complaining witness's testimony regarding penetration or, in most instances, the perpetrator's identity (Penal Law, § 130.15, as amd. by L. 1972, ch. 373). Additionally, it discards the judicially created rule extending the corroboration requirement to incidental crimes where the charge is supported by evidence of a consummated rape ( People v. Lo Verde, 7 N.Y.2d 114, supra; People v. English, 16 N.Y.2d 719, supra; People v. Radunovic, 21 N.Y.2d 186, supra; cf. People v. Moore, 23 N.Y.2d 565, 567-568, supra).
This amended version represents an improvement over the present law, but retains crude vestiges of the former evidentiary standard: the element of force, and in certain cases, identity, still requires corroboration. Consistency, as well as a quest for greater justice suggests instead a proposal to eliminate corroboration entirely ( Matter of Sam "F" and Bobby "S", 68 Misc.2d 244, 250, supra). What was said once, and said well, recommends an eminently more reasonable, certainly more just approach to an admittedly difficult problem: "A better principle * * *, variously phrased, [would require] especially convincing and satisfying evidence, within the rubrics of proof beyond a reasonable doubt and the preponderance of evidence" in prosecutions for such offenses ( People v. Radunovic, 21 N.Y.2d 186, 192, supra). The standard has already proven reliable in other instances where the danger of fabrication is constant ( supra, p. 102) and provides a practical, yet efficient, safeguard against convictions on idle accusations.
In the end, the question is essentially one of credibility, and for the finder of fact. Formalistic requirements such as corroboration place an unrealistic premium on legal niceties, often contrary to the overwhelming proof in a case. Experience recommends further legislation dispensing with corroboration entirely.
Once again we have before us the issue of how much corroborative evidence is legally sufficient to support a conviction for rape. In my opinion, neither precedent nor the raison d'etre of the corroboration requirement sanction the result reached by the majority.
Section 130.15 of the Penal Law provides that, except for the offense of sexual abuse in the third degree (§ 130.55), a defendant may not be convicted of any offense defined in article 130 or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim. The People must establish, therefore, in every instance, corroboration of the complainant's testimony that (1) there was sexual penetration; (2) that the penetration was without consent; and (3) that the defendant was the assailant. ( People v. Page, 162 N.Y. 272; People v. Perez, 25 A.D.2d 859; Matter of Sam "F" and Bobby "S", 68 Misc.2d 244; see, also, Denzer and McQuillan, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 130.15, p. 279; Communication and Study Relating to Requirement of Corroborative Evidence for Conviction of Certain Crimes, 1962 Report of N.Y. Law Rev. Comm., pp. 639, 653; Legis. Bull. No. 28 [1971], Assoc. of the Bar, City of New York, pp. 1-2.) Since there is ample evidence, both physical and medical, in the case at bar, to establish corroboration that the crime of rape was committed by forcible compulsion, the issue dispositive of this appeal is whether the record contains some independent showing to corroborate the complainant's identity of the defendant as her assailant.
Except, of course, for attempts, assaults with intent to commit sexual offenses, and impairment of the morals of a minor, which require proof of sexual activity, or intent to commit same, rather than penetration.
In determining whether certain evidence satisfies the corroboration requirement in a particular case, it must be noted that the corroborating evidence need not be in and of itself sufficient to support a conviction (see, e.g., People v. Terwilliger, 74 Hun 310, affd. on opn. below 142 N.Y. 629; People v. Imperiale, 14 Misc.2d 887; 1962 Report of N.Y. Law Rev. Comm., supra, at pp. 663-664), nor must it consist of eyewitness testimony (see, e.g., People v. Duegaw, 34 A.D.2d 1043; People v. Adams, 72 App. Div. 166; and see Younger, The Requirement of Corroboration in Prosecutions for Sex Offenses in New York, 40 Fordham L. Rev. 263, 268). Rather, inquiry should necessarily be made as to whether such evidence serves the asserted purpose of that requirement, to wit: to eliminate or make negligible the possibility that innocent men will be convicted of rape. (See Comment, Corroborating Charges of Rape, 67 Col. L. Rev. 1137, 1141; compare People v. Yannucci, 283 N.Y. 546; People v. Deitsch, 237 N.Y. 300; People v. Chumley, 24 A.D.2d 805 [cases holding particular items of evidence to be sufficient] with People v. Czyz, 262 App. Div. 102 7; People v. Speeks, 173 App. Div. 440; People v. Doyle, 158 App. Div. 37 [cases holding particular items of evidence insufficient]; and see, generally, 7 Wigmore, Evidence [3d ed.], §§ 2061, 2062.) Thus, evidence which tends to connect the defendant, and no other, with the rape sufficiently satisfies the requirement of corroboration of identity. (See, e.g., People v. Masse, 5 N.Y.2d 217; People v. Deitsch, 237 N.Y. 300, supra; People v. Hutchings, 36 A.D.2d 659; People v. Chumley, 24 A.D.2d 805, supra.)
In the case before us, the People, on the issue of the defendant's complicity, rely on the fact that the complainant described with accurate detail the automobile, which was stipulated to as the defendant's, and that a ring, matching precisely the description of a ring which the complainant said her assailant wore, was taken from the defendant's hand at the time of his arrest. In my opinion, this evidence, connecting the defendant with the events as testified to by the complainant, is more than "an `immaterial fact'" and "it is one of the `surrounding circumstances' of the case with sufficient corroborative value to meet the mandate of the statute." ( People v. Masse, 5 N.Y.2d 217, 222; and see People v. Marshall, 5 A.D.2d 352, affd. 6 N.Y.2d 823.)
The descriptions furnished by the complainant were quite precise and contained vivid details. For instance, defendant's vehicle was described as a black and white model with high tailfins, a broken antenna, an unusual hood ornament, and a plastic bug hanging from the rear-view mirror; and as to the ring, she accurately described it as being gold, containing a flat black stone. Significantly, complainant had never met the defendant prior to the time of the attack, nor did she see him in person from that time to the trial. Never having seen the defendant at any other time, the car and the ring, and their description, would not become known to the complainant in any casual way. Rather, since the complainant could have observed these somewhat unique items only at the time of the commission of the crime, her descriptions place the defendant at the scene of the crime, and the reasonable inference to be taken is that he was sufficiently connected with the crime as testified to by the complainant.
I would only note that the defendant also testified that the complainant was not known to him. Hence, we have a true stranger situation, as distinguished from acquaintances, friends or lovers.
In sum, the objective and independent facts as testified to by the complainant with regard to the car and ring provide the necessary corroboration. Indeed, recognizing the probative value of this evidence goes "far toward rationalizing a rule which, however salutary its original intention, has thus far in its existence been troublesome in application and at times absurd in result" (Younger, op. cit., supra, 40 Fordham L. Rev., at p. 278) and is consonant with the legislative command that the provisions of the Penal Law "must be construed according to the fair import of their terms to promote justice and effect the objects of the law." (Penal Law, § 5.00.) The majority, on the other hand, by its complete disregard of this evidence has, in effect, created a shield for the guilty, an untoward result which is, of course, clearly contrary to the reasons enunciated as the aims of the corroboration requirement, and has imposed "an impracticable burden on the prosecutor". (Model Penal Code [Tent. Draft No. 4, April, 1955], § 207.4, Comment 22, at p. 264.)
To be sure, there is a need for prompt legislative action. The anomalous condition of the law created by New York's corroboration rule was aptly stated by Judge BREITEL, concurring in People v. Radunovic ( 21 N.Y.2d 186, 191): "It is an immature jurisprudence that places reliance on corroboration, however unreliable the corroboration itself is, and rejects overwhelming reliable proof because it lacks corroboration, however slight and however technical even to the point of token satisfaction of the rule." To adhere to a rule which creates such a situation is intolerable.
Recent legislation (L. 1972, ch. 373, amd. Penal Law, § 130.15), which no longer makes it incumbent on the People to produce corroborating evidence of the assailant's identity and of penetration, is commendable. The only reasonable solution, however, to this concededly grave problem in the current administration of criminal law is outright repeal of all corroboration requirements in sex cases. (See Ludwig, the Case for Repeal of the Sex Corroboration Requirement in New York, 36 Brooklyn L. Rev. 378.) Our system of jurisprudence relies on a jury to distinguish truth from falsehood, after hearing evidence and giving due weight to the requirement that one must be considered innocent until proven guilty beyond a reasonable doubt. Since these safeguards suffice for murder, robbery or burglary cases, there is no cogent reason why they should fail when the crime charged is a sex offense.
Accordingly, I would affirm the judgment of conviction.
Judges BURKE, BERGAN, BREITEL and GIBSON concur with Judge SCILEPPI; Chief Judge FULD concurs in the following memorandum: I concur in the court's opinion insofar as it directs a reversal of the defendant's conviction but I do not subscribe to the suggestion that the requirement of corroboration in rape prosecutions be eliminated or further relaxed by the Legislature; Judge JASEN dissents and votes to affirm in a separate opinion.
Order reversed and a new trial ordered.