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IN THE COURT OF APPEALS OF MARYLAND

No. 130 September Term, 1996 ______________________________________

PATRICK T. LANE v. STATE OF MARYLAND

______________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Karwacki (retired, specially assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: December 15, 1997

Appellant was convicted in the Circuit Court for Wicomico County of attempted second degree rape, a second degree sexual offense, an unnatural and perverted practice, and assault and battery. After merging the assault and battery conviction, the court imposed consecutive sentences of seven years each for the attempted second degree rape and the second degree sexual offense and a concurrent two-year sentence for the unnatural and perverted practice. The victim of this conduct was appellant's wife, with whom he was then living in the marital home. Three questions are presented in this appeal which, on our own initiative, we have elected to hear in lieu of proceedings in the Court of Special Appeals: (1) whether a man may be convicted of attempted second degree rape when the victim is his wife, with whom he is living at the time of the conduct; (2) whether the evidence sufficed to support the various convictions; and (3) whether the court erred in failing to merge the unnatural and perverted practice conviction into the conviction for second degree sexual offense. The State has conceded the third issue, and, as a result, we shall vacate the two-year sentence entered on that conviction. Otherwise, we shall affirm the judgments entered below.

I. FACTUAL BACKGROUND Appellant and his wife, Tammi, were married in 1991; in October, 1995, they resided together in their marital home in Salisbury; and on the evening of October 25-26, 1995, they engaged in some form of sexual activity and had an altercation that caused Ms. Lane to call 911 for assistance. Those facts are not in dispute. Virtually everything else was; appellant

and his wife gave very different testimony regarding the state of their marriage, their living arrangements, and what occurred on that October evening. According to appellant, he and his wife had a good marriage. They shared the same bedroom, had recently vacationed together, and engaged in intimate sexual relations. Ms. Lane, who traveled a lot in her job, returned home around 11:30 p.m. on October 25; they talked for a while, and she then went to bed. In an effort to be helpful, appellant retrieved her suitcase from her car in order to wash her clothes. In the course of unpacking the suitcase, he said, he discovered a diary in which she had recorded in some detail an affair she was having. Feeling the need to discuss the matter with her, appellant went to the bedroom, put his arm around her, and awakened her. He said that he confronted her with the knowledge gained from reading the diary in an attempt to salvage their marriage, that she initially denied there was a diary but then demanded its return, and that she offered, commenced, and engaged in sexual favors to induce him to return the diary. The altercation leading her to call the police, he claimed, broke out later, when he discovered her "daytimer" in her car, which he also refused to return. Even as to that, however, he portrayed her as the aggressor, to the point of threatening him with a gun. Had the court, in this non-jury trial, accepted appellant's version, it no doubt would have acquitted him of the charges brought against him. The court did not accept that version, however, but chose to give greater credence to Ms. Lane's version. According to Ms. Lane, the marriage was not a happy one. They had talked about separating on a number of occasions; they occupied separate bedrooms -- she slept in an
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upstairs bedroom and he remained downstairs on the couch; and they had not had sexual relations for more than a year. She was a supervisor for Food Lion -- a grocery chain -- and was responsible for stores in the Virginia Beach area and on the Eastern Shore of Maryland. That, she said, required considerable travel. On October 25, she returned home between 7:30 and 8:00 p.m. from Virginia Beach, where she had been for three days. Upon her return, appellant began to complain about her being away so much, and, after an hour or more of argument, she went upstairs to go to bed. At some point, Ms. Lane said, she was awakened to find appellant on top of her, jumping on her. She was lying on her back, clad in her underwear and a tee shirt, and appellant was essentially sitting on her hips, straddling her legs. He was screaming that he had found out about her boyfriend and was going to ruin her and that he would henceforth do what he wanted with her, sexually. She said he grabbed her wrists with one of his hands and held them over her head and, with his other hand, penetrated her vagina. Somehow, he also managed to remove her tee shirt and underwear, expose his penis, slap her face from side to side with it, and attempt to insert it into her mouth. Ms. Lane added that "[h]e tried to have intercourse with me in between, when he didn't have his fingers inside of me." When asked to describe that effort more particularly, she said that he "kept pushing my legs apart further than they were at that point" but that "he never was able to." Suddenly, Ms. Lane said, he stopped, resigned that she was not going to perform fellatio, and she was able, momentarily, to jump out of bed and begin putting on her jeans. Appellant pushed her back on the bed, however, removed her jeans, and again placed his
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fingers in her vagina, slapped her face with his penis, and, at some point, succeeded in placing his penis in her mouth. All of this, she said, was without her consent. She attempted to resist with her legs. Once again, he "just stopped" and went downstairs. She dressed and went down as well. In the kitchen, they had an altercation over her "daytimer," which appellant had found and refused to return. Rebuffing her effort to retrieve it, he threw her against the kitchen wall, and, when she picked up a portable telephone to call the police, he grabbed it from her, pulled her hair, and threw her to the ground. Twice more she attempted to call the police, finally succeeding on her third try. When the police arrived, they found her waiting outside the home, at the end of the driveway, hysterical. Evidence showed that she had a number of bruises on her thighs, arms, and finger.

II. ATTEMPTED RAPE A. Preservation of Issue Count Two of the indictment returned against appellant charged him with unlawfully attempting to violate the provisions of Article 27, Section 463 of the Annotated Code of Maryland by "attempting to commit a rape in the second degree upon Tammi Lane . . . ." No motion challenging the sufficiency of that count was ever made; nor did appellant, at any time in the circuit court, seek a judgment of acquittal on, or a dismissal of, that count on the ground that it failed to charge a crime. His only argument with respect to the attempted rape charge dealt with the sufficiency of the State's evidence. At the conclusion of the State's
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case, he argued that there was insufficient testimony "that there was actually attempted vaginal intercourse" and that the State had not demonstrated that "there was an attempt that was committed by force without the consent." At the end of the entire case, he renewed his motion for judgment on the grounds raised earlier -- i.e., that the evidence was insufficient to show an attempted vaginal intercourse by force and without consent. In this appeal, although continuing to press the argument of evidentiary insufficiency, appellant has added the separate claim that attempted rape of a spouse is not a crime in Maryland. That issue was clearly not raised in or considered by the circuit court, although it was implicitly decided in the entry of the conviction. Ordinarily, we would not address an issue not raised in or expressly decided by the trial court. It has long been the law, however, which is now articulated in Maryland Rule 8-131(a), that a challenge to the trial court's subject matter jurisdiction may be raised on appeal even if not raised in or decided by the trial court. This exception to the general rule of preservation is based on the premise that a judgment entered on a matter over which the court had no subject matter jurisdiction is a nullity and, when the jurisdictional deficiency comes to light in either an appeal or a collateral attack on the judgment, ought to be declared so. Thomas v. Hardisty, 217 Md. 523, 536, 143 A.2d 618, 625 (1958); also State v. Ambrose, 191 Md. 353, 369, 62 A.2d 359, 367 (1948); Cook v. Alexandria Nat'l Bank, 263 Md. 147, 282 A.2d 97 (1971); Ford v. State, 330 Md. 682, 696, 625 A.2d 984, 990-91 (1993). In this regard, it has now become recognized that a court may not validly enter a
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conviction on a charge that does not constitute a crime and that the deficiency in any such judgment is jurisdictional in nature. In Williams v. State, 302 Md. 787, 791-92, 490 A.2d 1277, 1279 (1985), we declared it "fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute" and that "where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." See also Townes v. State, 314 Md. 71, 74, 548 A.2d 832, 833 (1988). The argument that attempted rape by a husband of his wife is not a crime goes to the jurisdictional sufficiency of that part of the indictment and therefore of the conviction, and, accordingly, it is an argument that is properly before us.

B. Analysis (1) Common Law Rape and Attempted Rape In Hazel v. State, 221 Md. 464, 468-69, 157 A.2d 922, 924 (1960), this Court defined the crime of common law rape as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." In conformance with that definition, we observed that "consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character." Id. at 469, 157 A.2d at 925. See also Simms v. State, 52 Md. App. 448,449, 453 A.2d 1196,
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1198 (1982); Coward v. State, 10 Md. App. 127, 268 A.2d 508 (1970). Although this Court never had occasion to rule on the matter, it was an accepted part of the common law that there was, within that broad definition of the crime, an unwritten, implicit marital "exemption" -- that a man could not be convicted of common law rape for having sexual intercourse with his lawful-wedded wife, even if the act was committed by force, without the wife's consent, and against her will. Although there exists an historical basis for it in earlier writings and practice, the "exemption," as pointed out in State v. Smith, 426 A.2d 38 (N.J. 1981), is commonly attributed to the brief statement by Sir Matthew Hale in his HISTORY OF THE PLEAS OF THE CROWN that "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." 1 SIR MATTHEW HALE, HISTORIA PLACITORUM CORONAE 628 (1st Amer. Ed. 1847). Hale himself gave no further explanation of that statement, but his proposition seems to be that (1) there is implicit in the marriage contract an irrevokable consent of the wife to sexual intercourse with her husband, (2) because such intercourse occurring during the marriage is thus, by law, consented to, it is not unlawful, and (3) because it is not unlawful, it cannot constitute rape. East, citing Hale, iterates that "a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract," (EDWARD HYDE EAST, A TREATISE
ON THE

PLEAS

OF THE

CROWN 446 (1806)). Neither Blackstone nor

Hawkins nor Coke expressly mention such a proposition, one way or the other, in their
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works.1 It did, however, find its way into American judicial opinions and commentary. 2
Hale's treatise, though composed in manuscript form possibly as early as 1671, when he was promoted to be Lord Chief Justice of England, was not published until 1736, sixty years after his death in 1676. As he had left instructions in his will that no amendments to his work made by anyone else were to be included in any publication, it would seem that his views were of the law as it existed in the 1670's. See, in general, GILBERT BURNETT, THE LIFE AND DEATH OF SIR MATTHEW HALE (1682); see also Emlyn, Mr. Emlyn's Preface to SIR MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN, v-xxiii (1736). It is not at all clear that the English courts ever subscribed entirely to Hale's view. In The Queen v. Clarence [1888] 22 Q.B. 23, some of the judges of the Queen's Bench Division of the High Court of Justice commented on the proposition. Clarence was not a rape case. The defendant had been convicted of assaulting and inflicting grievous harm on his wife by having intercourse with her while suffering from gonorrhea, which she contracted as a result, and the issue was whether the conviction could stand. Hale's proposition arose in the context of an argument that the wife's consent to the intercourse was vitiated by the fact that she was unaware of her husband's affliction, and, in addressing the question of whether she could lawfully have refused consent had she known of the disease, a number of the judges made clear their view that a wife's consent to intercourse, as part of the marital contract, was not total and irrevokable. Judge Field was the most direct. After quoting Hale's statement, he observed that "no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime." Id. at 57. Field cited as support Popkin v. Popkin (1794), an ecclesiastical court decision noted in Durant v. Durant, 162 Eng. Rep. 734, 745 n. b at 747 (1825), holding that a husband had no right to the person of his wife if her health is endangered. Judge Smith, though accepting that, at marriage, the wife consents to the husband "exercising the marital right," nonetheless assumed that that consent could be revoked. Id. at 37. Judge Wills took for granted that most women would likely refuse consent to intercourse with a man suffering from a venereal disease and noted that "it is, I should hope, equally true that a married woman, no less than an unmarried woman, would be justified in such a refusal." Id. at 34. Judge Hawkins stated that, by the marriage contract, "a wife no doubt confers upon her husband an irrevocable privilege to have sexual intercourse with her during such time as the ordinary relations created by such contract subsist between them," and, for that reason, the husband could not ordinarily be convicted of a rape committed by him upon her person. (Emphasis added.) He qualified that, however, by declaring that "this marital privilege" did not justify a husband in endangering his wife's health, that a wife was justified in resisting "the sexual embraces of a husband suffering from such a contagious disorder," id. at 51, and that if holding a husband guilty of assault under such circumstances would subject him also to a charge of rape "the opinion I have above expressed would not be changed." Id. at 52. Hawkins continued that, although a jury would not likely convict a husband of rape "except under very exceptional circumstances," he could "readily imagine a state of circumstances under which a husband might deservedly be punished with the penalty attached to rape." Id. Indeed, the only judge to embrace Hale's broad statement unreservedly was Judge Pollack, who opined that the husband's intercourse "is done in pursuance of the marital contract and of the status which was created by marriage, and the wife as to the connection itself is in a different position from any other woman, for -81

Whatever the rationale chosen to support the "exemption," generally the commentators accepted the proposition that, at common law, a husband could not be
she has no right or power to refuse her consent" even when "accompanied with conduct which amounts to cruelty." Id. at 64. Later English cases seemed to accept Hale's proposition but held it inapplicable when the parties were separated pursuant to court order. See R. v. Clarke [1949] 2 All E.R. 448; R. v. Miller [1953] 2 All E.R. 529; compare R. v. O'Brien [1974] 3 All E.R. 663. We are aware of no American court that, in light of all that has more recently been learned about the nature and extent of domestic violence in marital homes, would any longer subscribe to Hale's rationale for such a rule, much less that of Judge Pollack. Indeed, in their more recent decisions, American courts have gone to some length to disavow any adherence to such a rationale. See, in addition to the New Jersey decision in Smith, Warren v. State, 336 S.E.2d 221 (Ga. 1985); Weishaupt v. Com., 315 S.E.2d 847 (Va. 1984); Com. v. Chretien, 417 N.E.2d 1203 (Mass. 1981); Shunn v. State, 742 P.2d 775 (Wyo. 1987); State v. Smith, 401 So.2d 1126 (Fla. Dist. Ct. App. 1981). The New Jersey court in Smith suggested that Hale's notion may have been premised on the fact that, in 17th Century England, marriages themselves were more permanent, ending only by death or an Act of Parliament, and that Hale may simply have believed that, since the matrimonial vow was essentially non-retractable, so was the implied consent to the conjugal privilege. Professors Perkins and Boyce also dismiss the notion of a presumed non-retractable consent as obsolete, but, at least in 1982, supported the marital "exemption" on the ground that "an essential element of the crime is that the sex be unlawful, and marital sex is not unlawful." ROLLIN M. PERKINS AND RONALD N. BOYCE, CRIMINAL LAW 203 (3d ed. 1982). We find that view puzzling, to say the least, as it begs the critical question of consent. Sexual intercourse between unmarried adult men and women is also not unlawful, at least in Maryland; it becomes unlawful only when engaged in by force and without consent. Apart from that lapse in logic, there seems to be no real distinction between the Perkins and Boyce view and the one articulated by Hale. The law sanctions sexual intercourse between husband and wife because the law assumes that such intercourse, as an integral part of the marital relationship, is, in fact, consensual, and, to that extent, it stands on the same footing as consensual non-marital sexual intercourse. The change in philosophy with respect to the marital "exemption," whether marked by courts or by legislatures, arises from the law's belated recognition that, although that assumption may be generally true and well-justified, it is not always so, and when it is not, the justification for the "exemption" disappears. Some courts have delved for other rationales in support of Hale's statement. In Warren v. State, 336 S.E.2d 221 (Ga. 1985), for example, the Georgia court suggested that Hale may have based his theory on "the subsequent marriage doctrine of English law, wherein the perpetrator could, by marrying his victim, avoid rape charges." Id. at 223. The court posited that the "exemption" may also have been based on the medieval doctrine that a wife was her husband's chattel and that forcible sexual intercourse was nothing more than a husband making use of his own property, or on the common law "unity in marriage" theory, holding that, for some purposes at least, the legal existence of a married woman was incorporated into that of her husband, and that, as there was but one legal being -- the husband -- he could not be convicted of raping himself. Id. -92

convicted of raping his wife through his own act of sexual intercourse, and, as we have indicated, that view also found recognition in court decisions.3 See, for example, 3 WHARTON'S CRIMINAL LAW

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