Opinion
No. V89-68548.
Decided May 29, 1990.
Rupert E. Ruppert, for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
Susan D. Adams has alleged that during the early morning hours of October 1, 1988, in Butler County, Ohio, she was raped by Terrance Kincaid, a family acquaintance. The applicant Homer B. Adams, the father of Susan Adams, has filed this application seeking to recover payment of unreimbursed medical expenses incurred on behalf of his daughter.
The incident forming the basis of this claim was reported to the Middletown Police Department within seventy-two hours after its occurrence. However, Terrance Kincaid was never prosecuted for the alleged rape.
The Attorney General, in his finding of fact and recommendation, submits that this claim be denied because insufficient proof exists to show Susan Adams was a "victim," as defined in R.C. 2743.51(L). Essentially, the Attorney General, after conducting his investigation, contends Susan Adams was neither raped on October 1, 1988 nor did she suffer personal injury as a result of any sexual conduct occurring on October 1, 1988. Furthermore, the Attorney General asserts the medical treatment Susan Adams received and the resulting fees submitted for payment under this claim were not related to any criminal act. Consequently, the Attorney General submits Homer Adams, who is responsible for his daughter's medical expenses, is not a "claimant," as defined in R.C. 2743.51(A).
After careful review of the reparations application, the finding of fact and recommendation of the Attorney General, documents and evidence contained in the case file, and the response of the applicant, I make the following determination.
I disagree with the Attorney General's recommendation and find Susan Adams to be a victim and Homer Adams a claimant. In making this determination, it is necessary to review the pertinent facts establishing the validity of this claim. The factual contents appear in various police reports compiled by investigating law enforcement officers.
On October 1, 1988, at approximately 4:10 p.m., a law enforcement officer from the Middletown Police Department was dispatched to 3606 Roosevelt Street, Apartment B, in response to an alleged rape. The alleged rape victim, Susan D. Adams, was transported from her Roosevelt Street residence to the police station to make a statement concerning the rape.
According to the report compiled at the police station, Susan Adams related that, while she was home at approximately 12:00 a.m. on October 1, 1988, she received a phone call from an acquaintance identified as Terrance Kincaid. Kincaid asked if he could come over to her residence and Adams agreed. Shortly after the phone conversation, Kincaid arrived at the Roosevelt Street residence with some beer, and he and Adams went into her bedroom. While Adams and Kincaid were in her bedroom, they talked, drank the beer, and she subsequently put on a bathing suit and modeled it for him. Adams then changed clothes and Kincaid asked her to go for a ride, which she agreed to do.
As related in the police report, Adams and Kincaid left the Adams' residence and got into Kincaid's car; Adams drove to Miami River Park, where he parked the automobile. While Adams and Kincaid were sitting in the parked car, Adams stated Kincaid pulled down his trousers and asked her to perform oral sex upon him, which she stated she did out of fear. Adams further related Kincaid offered her $40 for additional sex, but she refused. However, Adams admitted she did remove her clothes and engaged in sexual activity with Kincaid because she was afraid of him. Adams contended that her participation in the sexual conduct was nonconsensual and against her will.
Adams stated that after this initial episode, Kincaid talked vulgar to her and ordered her out of his car. She dressed and left the car. However, when she started to leave the park area on foot, Kincaid drove up to her and ordered her to get back in the car. After she returned to the car, Kincaid drove across the street, stopped the car in a parking area behind a bar, and made Adams again undress and engage in sexual intercourse. Adams further stated Kincaid took her to a wooded area adjacent to the bar and engaged in sexual intercourse a third time. After this incident, Adams asked to be taken home, but Kincaid refused and took her to her sister's residence. Adams stated she told her sister of the sexual incidents with Kincaid and subsequently went home where she showered and told her mother what had happened to her. The police were informed and a report was compiled. The investigating police officers, after interviewing Adams, advised her that they did not believe she was the victim of multiple rapes or other sexual offenses because she did not describe any incident of Kincaid forcing her or threatening her with force. According to the report, Adams said she submitted because she was afraid.
On October 2, 1988, Susan Adams again contacted the Middletown Police Department insisting Kincaid be arrested for raping her. At this time she also stated Kincaid had struck her, forcibly held her down, and threatened to kill her during the October 1, 1988 sexual activity. The formal police investigation concerning the incident forming the basis of this claim ended on October 4, 1988 when the investigating officers allege Susan Adams called and expressed her desire to have Terrance Kincaid's prosecution abandoned. Susan Adams has denied she contacted the police and requested they discontinue prosection of Kincaid. In fact, Adams has alleged the investigating officer refused to acknowledge any complaint against Kincaid.
On October 2, 1988, members of the Middletown Police Department interviewed Terrance Kincaid in respect to Susan Adams' allegations. Kincaid stated he called Adams shortly after midnight on October 1, 1988 and she asked him to come to her residence and bring beer. Kincaid further related the bathing suit modeling episode in such a way as to imply Adams was attempting to entice him. Furthermore, Kincaid stated that he decided to leave the Adams' residence when Susan Adams' mother became irritated over Susan's wearing her bathing suit in front of Kincaid. When Kincaid left, he asserted Susan Adams asked to go with him. He admitted he drove his car to Miami River Park and parked the vehicle there. However, he stated that Susan Adams, not he, initiated the sexual activity by saying she needed money and would do anything for $20. Kincaid admitted he agreed to pay Adams $20 for oral sex. Kincaid further stated Adams performed oral sex on him for fifteen to twenty seconds; he became dissatisfied, refused to pay the $20 and drove her to her sister's house. Kincaid related that Adams wanted him to drive herself home; he admitted he was too drunk to drive that far, although he was not too intoxicated to drive Adams to the Miami River Park. No further law enforcement investigation concerning Terrance Kincaid was conducted after his initial interview and statement.
The Middletown Police Department decided to drop all investigation of the incident forming the basis of this claim after Susan Adams allegedly expressed a desire to discontinue prosecution on October 4, 1988. However, notwithstanding the discontinued prosecution, documents in the case file point to the fact the investigating authorities held a tepid attitude at best concerning the validity of Adams' allegations. Authorities believed Adams told disparate stories concerning the October 1, 1988 incident and further believed she suffered "mental problems." Additionally, investigating authorities thought Adams lacked credibility because she discussed two previous forced sexual encounters, but admitted she did not report these alleged crimes. Furthermore, it was apparent the police did not particularly believe Kincaid's version of the October 1, 1988 incident since he asserted Adams solicited him for the purposes of prostitution and no charges arose from this alleged criminal conduct.
Regardless of the beliefs of the investigating authorities, I find Susan Adams was a "victim of crime" as defined in R.C. 2743.51(L).
R.C. 2743.51(L) states, in pertinent part:
"`Victim' means a person who suffers personal injury or death as a result of any of the following:
"(1) Criminally injurious conduct[.]"
Additionally, former R.C. 2743.51(C) stated, in pertinent part:
"`Criminally injurious conduct' means conduct that occurs or is attempted in this state; poses a substantial threat of personal injury or death; and is punishable by fine, imprisonment, or death, or would be so punishable but for the fact that the person engaging in the conduct lacked capacity to commit the crime under the laws of this state. * * *" (See 141 Ohio Laws, Part II, 3036, 3037.)
Furthermore, R.C. 2907.02(A)(2), the rape statute, states:
"No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force."
In the instant claim, Susan Adams stated she engaged in nonconsensual sexual activity with Terrance Kincaid because she was afraid he would hurt her if she did not submit. Although no physical evidence existed of direct force being applied to Adams to make her submit, I find the fact she submitted out of fear is sufficient evidence to show she was a victim of criminally injurious conduct in the nature of a sexual assault. Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established. State v. Martin (1946), 77 Ohio App. 553, 33 O.O. 364, 68 N.E.2d 807; State v. Wolfenberger (1958), 106 Ohio App. 322, 7 O.O.2d 73, 154 N.E.2d 774.
Susan Adams alleges that she was forced to engage in sexual activity as a result of fear. The Attorney General, in his finding of fact and recommendation, did not dispute or attack this allegation. Consequently, I find Adams has proven, by a preponderance of the evidence, she was a "victim," as defined by R.C. 2743.51(L).
Furthermore, evidence in the case file shows Adams, in May 1989, was admitted to a drug and alcohol treatment facility where it was discovered she was suffering from post-traumatic stress disorder, a mental condition consistent with the aftermath of rape. Medical professionals diagnosed the post-traumatic stress disorder as causally related to Adams' being raped. However, the evidence is inconclusive to indicate Adams' problems with alcohol are related to her subjection to sexual assault. Therefore, this claim will be referred to the Attorney General for a new finding of fact and recommendation concerning calculations of the applicant's unreimbursed allowable expense related to the act forming the basis of this claim and any work loss incurred by Susan Adams.
Findings of Fact
1. The injured party was criminally assaulted by Terrance Kincaid on October 1, 1988, in Butler County, Ohio.
2. The applicant is the injured party's father.
3. The assault was reported to a law enforcement officer or agency within seventy-two hours after the occurrence.
4. Insufficient evidence has been submitted to make up findings concerning unreimbursed allowable expense and work loss.
Conclusions of Law
1. Susan Adams qualifies as a "victim" as defined in R.C. 2743.51(L).
2. The applicant qualifies as a "claimant" as defined by R.C. 2743.51(A).
ORDER
1. This claim is not yet ready for final determination.
2. This claim is referred to the Attorney General for further investigation and a new recommendation concerning the applicant's unreimbursed allowable expense incurred which is causally related to the October 1, 1988 criminally injurious conduct and the victim's work loss resulting from the October 1, 1988 criminally injurious conduct.
3. The new finding of fact and recommendation of the Attorney General shall be filed with the court by June 28, 1990.
4. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General.
5. Costs assumed by the reparations fund.
Reporter's Note: The applicant was awarded $1,000 on September 21, 1990.