Md. high court weighs evidentiary burden in rape cases

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ANNAPOLIS – A person charged with raping someone who lacked the ability to give consent due to a mental defect cannot be convicted if the state fails to provide expert medical testimony on the alleged victim’s pre-existing condition, a defense attorney told Maryland’s top court Thursday.

But an assistant Maryland attorney general countered medical testimony is not required if sufficient evidence is introduced at trial so that the jury could conclude that the alleged victim was mentally disabled.

Several Court of Appeals judges appeared divided as the attorneys as they heard Miguel A. Fuentes’ appeal of his convictions for second-degree rape and third-degree sexual assault of a deaf woman described in trial testimony as unable to communicate clearly and to care for herself.

Judge Clayton Greene Jr., for example, said the testimony, though compelling, was merely “anecdotal” and faulted the prosecution for not introducing medical testimony that the woman was “mentally defective” as required under the criminal statute.

But Judge Shirley M. Watts said “the record was replete with evidence from different sources that there was a mental disorder.”

At issue before the high court was the breadth of evidence the prosecution must present to show under Section 3-301 of the Criminal Law Article that a victim suffered from a mental defect such that he or she was legally incapable of consenting to sexual activity.

Both the Prince George’s County Circuit Court, where Fuentes was convicted, and the intermediate Court of Special Appeals held that expert medical testimony is not required and a jury can conclude the victim had a mental defect based on the evidence presented.

But defense attorney Juan P. Reyes, pressing Fuentes’ appeal, said the Maryland General Assembly intended to protect people “diagnosed” with a mental disorder that prevents them from expressing their lack of consent to sexual activity.

Reyes conceded the statute does not mention a need for a diagnosis but said one is clearly implied by the use of the medical term “mentally defective individual.”

But Judge Joseph M. Getty interjected that the legislature’s goal under the statute was to create a protected “special class” of mentally disabled individuals who would not have to show an overt lack of consent or force to prove sexual activity was against their will.

“Aren’t you raising the burden higher than what legislature wanted it to be” by requiring medical testimony? Getty said.

Chief Judge Mary Ellen Barbera also questioned the need for a medical diagnosis in saying that “there was certainly some evidence that she did not know what happened to her.”

This evidence included testimony that the victim knew red liquid was coming from her body after the attack but thought it was urine or water rather than blood, a level of ignorance that a jury could conclude indicated a mental defect, Barbera said.

Reyes, an assistant Maryland public defender, responded that “anecdotal evidence is not enough” for a rape conviction beyond a reasonable doubt.

Assistant Maryland Attorney General Gary E. O’Connor, however, said it “doesn’t make sense” to require medical testimony to show someone lacked the mental ability to give consent. Such an evidentiary requirement would leave individuals with undiagnosed medical defects vulnerable to sexual assault even if a would-be attacker, and juror, could clearly see they were incapable of giving their consent, O’Connor said.

He added that the General Assembly intentionally used the broad term “mentally defective” because it is subject to “ordinary understanding” and does not need medical diagnosis and testimony.

“This is something that is within the ken of the ordinary juror,” O’Connor said.

Fuentes’ defense at trial was that the sexual activity at the Marriott in Adelphi, where he and the victim both worked, was consensual.

But the woman testified through a sign language interpreter and by using two dolls that Fuentes came up to her from behind in February 2012, pulled down her pants and assaulted her sexually, according to the Court of Special Appeals’ unreported opinion last year.

The woman’s mother and sister testified that she is disabled, can never be left alone and cannot take care of herself. This testimony was corroborated by a disability aide who had worked with the woman for six years.

Fuentes’ trial attorney countered that no medical evidence was presented that the woman had a mental defect. In addition, no evidence had been presented that Fuentes knew or should have known that the woman’s disabilities made her mentally incapable of providing consent, the Court of Special Appeals’ opinion stated.

A jury convicted Fuentes of second-degree rape and third-degree sexual offense in 2014. He was sentenced to 20 years in prison, with all but 12 years suspended. The appeals followed.

The high court is expected to render its decision by Aug. 31 in the case, Miguel A. Fuentes v. State of Maryland, No. 64 September Term 2016.