Lucado v. State

Wilner, J., delivered the opinion of the Court. Appellant and a co-defendant were charged with a first-degree sexual offense, robbery, kidnapping, and a number of related offenses. A jury in the Circuit Court for Howard County convicted appellant of a sexual offense in the first degree, robbery, and battery, for which he was ■ sentenced to four years’ imprisonment. 1 All of this emanated from an incident occurring in the early morning hours of August 22, 1976, involving one K.D., then 18 years of age. Mr. D testified that, at about 1:00 a.m., he ²⁷ was on “the Block” (for the uninitiated, this is an “adult entertainment” strip of several blocks along East Baltimore Street in Baltimore City), waiting for two friends whom he had arranged to meet.

He had expectations of starting a new job promising a substantial increase in income, and wanted to celebrate. While strolling down the street, appellant approached him and engaged him in conversation — “started talking about the Block and whores and buying them, and things like that.” Suddenly, appellant grabbed his arm, forced him into a car, pushed his head down, and threatened him with what Mr. D claimed was a knife. The co-defendant, Charles Linton, was sitting in the driver’s seat, and immediately drove off. According to Mr. D, they drove into the country and stopped at a church: “[W]hen we stopped, they kept telling me we were going to a whorehouse, and they pointed to a big church, and they said it was a whorehouse, that’s where I was going to die that night.” D fled from the car, but was captured and forced to return, whereupon they drove to another spot.

At this point, appellant forced D to remove his pants and to perform fellatio, at the conclusion of which appellant and Linton changed places, and D was forced to perform the same act on Linton. During this ordeal, D was periodically struck by the assailants, and his wallet, containing over $150, and a watch were taken. Appellant, in addition, attempted to have anal intercourse with D. When all of this had ended, D was forced from the car and nearly killed when appellant swung at him with a tire iron. Linton persuaded appellant to desist in this effort, at which point, D was placed back in the car, driven around for a while and finally let go.

As the assailants drove off, D noticed part of the license number, which he gave to the police. During cross-examination of D, both defense counsel intimated, through their questioning, that D was a homosexual, that he initiated the sexual activity, and that he enjoyed what happened to him. D unequivocally denied such suggestions. That this would be the principal line of defense became clear when appellant testified on his own behalf.

He admitted being on “the Block” with Linton on the evening ²⁸ in question, but claimed that D initiated the conversation, voluntarily got into the car, and initiated the sexual contact — first with Linton and then with appellant. All allegations of force, coercion, and brutality were denied, as were the explicit acts testified to by D. Appellant claimed that D had grabbed him — “started messing around with me, and I pushed him away.” The clear, unmistakable import of appellant’s testimony was that D was homosexual and had initiated everything that occurred in the car. Linton, who also testified, gave essentially the same story; he also charged D with initiating all of the episodes of fellatio and attempted anal intercourse. At the close of the case for the defense, the State advised the court (and defense counsel) that it had one rebuttal witness — Mr. D’s uncle, who would testify as to “the non-homosexuality of Mr. [D].” The legal theory for admitting such testimony, according to the State, was that, “where consent is made a part of the defense ... the State has the right, in rebuttal, to prove that he is not, there was not consent, that this was not the kind of person that consented.

The question of homosexuality — they’ve accused him of being a homosexual.” Appellant’s counsel objected on the ground that “the uncle is not competent to prove that homosexuality or lack thereof...”. The objection was overruled, and the State then produced Police Sergeant Luberecki, D’s uncle. Sergeant Luberecki testified, without further objection, that he had known D all of his (D’s) life, that he had no reputation for being a homosexual, that Luberecki knew of no instances of homosexual activity on D’s part, and that D had never béfore been accused of being a homosexual. Both defense counsel briefly cross-examined Luberecki.

No motion to strike any of the testimony was made. In this appeal, appellant raises one question: Did the trial judge err in permitting testimony as to the victim’s alleged lack of reputation as a homosexual? He contends, of course, that there was error, and grounds his assertion on Md. Annot. Code art. 27, § 461 A, the pertinent part of which provides that “[elvidence relating to a victim’s reputation for chastity and ²⁹ opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of rape or sexual offense in the first or second degree.” The thrust of appellant’s argument, of course, is that Sgt.

Luberecki’s testimony to the effect that D was not homosexual and had no reputation for being so amounted to evidence relating to D’s “chastity”, and was thus precluded under the statute. Unfortunately, before considering the question of statutory interpretation — whether “evidence relating to a victim’s chastity” includes evidence relating to a victim's non-homosexuality — we must address the question of statutory application. This is made necessary because the particular language in the statute upon which appellant must, of necessity, rely was not the law at the time of his trial. It became effective later.

The legislative history of § 461A brings both questions — application and interpretation — more clearly into focus. This section was originally enacted by Laws of Md., 1976, ch. 574 (House Bill 715), one of two bills emanating from a Special Legislative Committee on Rape and Related Offenses that were passed by the General Assembly in 1976. The other bill (Senate Bill 358) was enacted as Chapter 573. As originally introduced, House Bill 715 made evidence as to a victim’s reputation for chastity inadmissible in “any prosecution for commission of a sexual offense.” The use of the phrase “sexual offense” had clear reference to the provisions of the companion bill — Senate Bill 358 — which, in its first reader form, repealed the common law crime of rape and the statutory reference to it in art. 27, § 461, and substituted instead four degrees of “sexual offense”.

Had the Senate Bill been enacted in its introductory form, there would have been no crime of rape — only the four degrees of “sexual offense”. During the legislative process, substantial amendments were made to both bills by the House of Delegates. The main bill — Senate Bill 358 — was amended to put back into the bill (and therefore the law) the crime of rape. What are now §§ 462 and 463 were added to the bill, defining and making criminal first and second degree rape, and “vaginal ³⁰ intercourse” was excluded from the definition of “sexual act”, which was the basis for the newly created “sexual offenses”.

The clear and unmistakable intent of these amendments was to reinstate rape, in its two degrees, as a crime separate and apart from the new sexual offenses. Corresponding amendments were made to House Bill 715. Whereas, as noted, the bill originally excluded evidence pertaining to chastity in prosecutions for a “sexual offense”, as amended, the words “sexual offense” were stricken, and the word “rape” substituted. When the bill passed over to the Senate, an attempt was made to restore it nearly to its original form.

Amendments were added that would have made the bill, and thus the exclusionary rule, applicable to both rape and sexual offenses; however, a day later, the bill was reconsidered and all of those Senate amendments were withdrawn. 2 The bill then passed, and was signed into law, with the limiting amendments placed on it by the House of Delegates. As enacted, a deliberate change had been made in the bill. Fully aware of the amendments made to the companion Senate Bill 358 making (or keeping) criminal both rape and the other sexual offenses, the General Assembly explicitly limited the scope of the House Bill’s exclusionary rule to prosecutions for rape. Both bills took effect July 1, 1976.

In its 1977 session, the General Assembly enacted Laws of Md., 1977, ch. 294, which expressly made § 461A applicable to prosecutions for sexual offenses in the first or second degree. However, that bill did not take effect until July 1, 1977. Appellant was tried in May, 1977, when only the provisions of the 1976 enactment were in effect. 3 Appellant having been charged with a sexual offense, and not with rape, it is apparent that, even if § 461A were to be construed in the manner desired by appellant, it would not have precluded the admission of Sgt. Luberecki’s testimony at the time it was offered; and, had appellant objected to the testimony on that basis, the objection would have been properly overruled. ³¹ Since the 1977 amendment is in effect now, however, the question is whether we must apply it retrospectively.

The Court of Appeals has told us that we must do exactly that. In Janda v. General Motors, 237 Md. 161 (1964), the Court said, at page 169: “A statute which affects or controls a matter still in litigation when it became law will be applied by the court reviewing the case at the time the statute takes effect although it was not yet law when the decision appealed from was rendered, even if matters of claims of substance (not constitutionally protected), as distinguished from matters procedural or those affecting the remedy are involved, unless the Legislature intended the contrary.” The rationale behind this rule of retrospective application is that, provided no “vested right” or contrary legislative intent is disturbed, it would be anomalous for a court to apply obsolete standards and issue a mandate that is inconsistent with current law. See Ziffrin v. United States, 318 U. S. 73 (1943); Janda, supra. The Court of Appeals has, on several occasions, applied this rule with respect to post-trial statutory changes that govern or affect the law of evidence — statutes making admissible that which was previously inadmissible or viee-versa.

See, for example, State v. Norwood, 12 Md. 195 (1858); Cunningham v. Dwyer, 23 Md. 219 (1865); Reynolds v. Furlong, 10 Md. 318 (1856); Atwell v. Grant, 11 Md. 101 (1857). See also, Annot., Appeal — Change of Law Since Decision, 111 ALR 1317 , 1334 (1937). This application of the rule presupposes, of course, the generally accepted principle that vested rights do not accrue in the rules of evidence. 4 There being no indication in ch. 294 itself, or in its legislative history, that the General Assembly intended it to be applied prospectively only, we are constrained by the force and rationale of Janda to give recognition to the law as it ³² presently exists, and thus to consider appellant’s claim in the light of the 1977 enactment. 5 We therefore will consider the question of whether § 461A, as it presently exists, renders Sgt. Luberecki’s testimony inadmissible.

Subsection (a) is the relevant part of the statute; it provides: “Evidence relating to á victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is: (1) Evidence of the victim’s past sexual conduct with the defendant; or (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue.” This part of the statute does two things. The first sentence flatly and unconditionally excludes opinion evidence relating to a victim’s “chastity” and evidence relating to the victim’s reputation for “chastity.” There are no exceptions to this prohibition, which appears to apply whether the evidence is offered by the prosecution or the defense. The balance of the ³³ subsection deals with something quite different — specific instances of the victim’s “prior sexual conduct” — evidence of which is admissible under certain conditions.

We are concerned here with the first sentence. Sgt. Luberecki’s testimony did not relate to or purport to describe specific instances of D’s prior sexual conduct, but pertained solely to his reputation. The question, however, is whether it related to D’s reputation for “chastity”.

To answer that question, we are put to the task of defining the word “chastity”, or at least determining what the General Assembly of Maryland meant when it used that term in § 461A. The rule which we apply in making that determination was stated thusly in Maryland Medical Service, Inc. v. Carver, 238 Md. 466 (1965): 6 “In construing the words used in the statute, this Court will consider them in their natural and ordinary signification; if, however, the words used in the statute are of doubtful meaning, this Court in determining the legislative intent, will consider not only their usual and literal meaning, but their meaning and effect considered in the light of the objectives and purposes of the enactment and the consequences resulting from one meaning rather than another meaning, with the real legislative intent prevailing over the intent indicated by the literal meaning of the words used.” In pursuing our quest for the true meaning of “chastity”, we start with Webster, as good an arbiter as any of the “natural and ordinary signification” of words. Webster’s New Twentieth Century Dictionary (Unabridged) gives five definitions of the word; namely: “1. abstinence from all unlawful sexual activity: said especially of women. 2. freedom from obscenity, as in language or conversation; decency; modesty. ³⁴ 3. simple refinement of design; lack of ornateness or excess. 4. purity; unadulterated state; as, the chastity of the gospel. [Rare.] 5. celibacy or virginity; sexual continence.” Given these five somewhat varying definitions, it does not appear that there is a single “natural and ordinary signification” of the word, at least not one from which the issue before us may be easily resolved. In terms of whether “chastity” encompasses or refers to the absence of homosexual tendencies, activities, or experiences, the word is of doubtful meaning; and we therefore must attempt to ferret out the legislative intent.

The words “chaste” and “chastity”, and the concepts which they purport to describe, have had a more limited meaning and application in the legal or societal setting than the full range of definitions given by Webster would require. They have, instead, been considered and applied almost exclusively in the context of the first and the fifth of these definitions. In the law, these terms have been traditionally used with particular reference to women; indeed, they have been associated with nearly every vestige of the different, and generally unequal, treatment of men and women by the law. 7 ³⁵ In dealing with these terms, the courts, with near uniformity, have viewed them in the context of sexual purity. With respect to unmarried women, chastity has been held to require virginity — the complete absence of any history of sexual intercourse with men. 8 Some courts have even suggested, by extension of that requirement, that divorcees (and presumably widows as well) could not be chaste. 9 The curious paradox of this demanding and clearly chauvinistic view of women and their sexual purity was that, at the same time that the law sought to exalt and protect that status from inappropriate male transgression, it swept away all pretense of privacy in this intimate matter by requiring women, in an open court of law, either to answer directly for or to