Instructions
Please create a title for your post by putting it in bold, “header 2” as the first line of your text.

Prompt: Answer the questions from one rape case and one of the equal protection cases.

Group 2

State v Rusk (1981)
Nature of the Case: Rusk was found guilty of second-degree rape for violating Maryland’s
Code Art. 27 which states that “A person is guilty of rape in the second degree if the person
engages in vaginal intercourse with another person (1) By force or threat of force against the will
and without the consent of the other person…”
Facts: Pat, the alleged victim, testified that when she gave Rusk a ride home, Rusk asked her to
come up to his apartment. After she refused to go with him, Rusk removed her car keys from the
ignition. Pat agreed to go with him because she feared Rusk by the way he was looking at her.
She said that Rusk agreed to not kill her and let her go if she did what he wanted her to do. Pat
proceeded to forcefully perform oral sex and have vaginal intercourse with him. According to
Pat, he also lightly choked her. Rusk claimed that Pat turned off the car and she accompanied
him willingly. He also denied using force and placing his hands on her throat.
Issue: Was there sufficient evidence to prove beyond a reasonable doubt that Rusk was guilty of
using force to have intercourse with Pat?
Holding: No. The Court of Special Appeals by an 8-5 majority found that there was insufficient
evidence to prove that Rusk was guilty of performing intercourse using force.
Reasons for Holding: The Court of Special Appeals quoted Hazel v State which ruled that
“Force is an essential element of the crime [of rape].” The victim needed to show that she
resisted and “her resistance was overcome by force or that she was prevented from resisting by
threats of force.” The Court of Special Appeals found no physical evidence or threats.
Additionally, Judge Thompson stated that the victim’s fear was not reasonable according to
Hazel v State.
Dissent: The dissent disagreed with the majority because they claimed when Rusk took Pat’s car
keys away, he was creating fear by immobilizing her.
Rule of Law: Hazel v State
Questions:
1. Do you think that a person needs to show physical evidence of force to be a victim of
second-degree rape?
2. Does Pat have a valid claim when she testified that she feared Rusk by the look in his
eyes and, therefore, she surrendered to him?

Commonwealth v Sherry
Case
· Commonwealth v Sherry (1982)
· Massachusetts Supreme Judicial Court
· 437 N.E.2d 224
Facts
In 1982, the victim and the defendants Eugene Sherry, Hussain, and Lefkowitz, were at a
party when they all of a sudden pushed her into a bathroom. They shut the door, turned off the
lights, and did not open until Lefkowitz asked the others to leave her in peace. Eventually they
left the party and the defendants wanted to go to a place called Rockport. The victim protested
verbally but went with them because she thought they were messing around. The victim stated
that she was not under any fear throughout the ride. As soon as they arrived at Lefkowitz house
in Rockport, she wanted to go home, but Hussain carried her inside. After smoking marijuana
while touring the house, Lefkowitz invited her into a bedroom with an antique bureau. When
they entered the room, the three men took off their clothes and undressed her, despite the
victim protesting verbally. She tried telling them to stop, but they all took turns having
intercourse with her. Afterwards, they forced her to take a bath, and then took her back to her
car in the morning.
The defendant’s testimony was completely different. They said that she invited herself to
go with them and did not show any unwillingness to go with them. While they were in the house,
she wandered into a bedroom and inquired about the antique bureau. Sherry walked in with
only his underwear on, and helped the victim get undressed, then she had intercourse with the
three men individually. They finished their testimony stating that she consented to the
intercourse.
Nature of the Case
The defendants pled not guilty to every rape charge. Their argument was that the requirement of
to charge someone for rape is that they used force or threat of bodily injury, and there is no
evidence that they did. They also argued that there was no proof that they kidnapped the victim.
Issue
Is the lack of force or threat of bodily injury enough to dismiss a rape charge?
Holding
No
Reason for Holding
It was determined by the courts that the victim was taken from the party and went to Rockport
with them by force, despite her verbal protests. The victim did not want to go inside the house,
but they ended up picking her up and bringing her inside the house anyways. Despite her
verbally rejected the advances, they undressed her and had sex with her anyways.
The jury ultimately decided that there was sufficient evidence to charge the defendants with rape
because they had sex with her through force and against her wishes. Any resistance is sufficient
to show lack of consent, whether or not there was physical resistance.
Rule of Law
(G.L.c. 265, § 22) states, “whoever has sexual intercourse or unnatural sexual intercourse with a
person, and compels such person to submit by force and against his/her will, or compels such
person to submit by threat of bodily injury to justify a charge of rape, the offender has to force
the victim against her will.”
Discussion Questions
1. Do you agree that in order to justify a rape charge, the victim is not limited to only
showing physical resistance, but verbal resistance is just as sufficient to deny consent?
Explain.
2. The court case had two opposing testimonies. The victim testified that she did not
consent and the defendants testified that she did consent. As a member of the jury or
the judge, how would you justify taking one testimony over the other?

Plessy v Ferguson 1896
· U.S. Supreme Courts
· 163 U.S. 537
What are the FACTS?
In 1896, 1982 incident in Louisiana where an African American (Homer Plessy) refused
to sit in a coach on a train for blacks. Plessy bought a first-class train ticket from New Orleans to
Covington, La. Plessy sat down in an empty seat in the only whites’ coach. Plessy was assigned
by coaches to a coach on the railway to which he belonged. Plessy argued to sit in a different
coach by the race which he did not belong to. He took possession of a vacant seat among white
race and was asked to move by the conductor. Plessy denied the demand of moving to a seat of
his race and was executed forcefully by a police officer and imprisoned in parish jail to withhold
any charges from the incident.
Nature of Case:
Plessy filed a lawsuit against presiding judge. John H. Ferguson. Arguing that the law of
white-only vehicles and being kicked off the train violated the Equal Protection Clause of the
Fourteenth Amendment. The Court had concern about whether or not the “Separate but Equal”
railway cars for black and white Americans, violated the Fourteenth Amendment.
ISSUE
Does “Separate but Equal” standard used in public accommodations violate the Fourteenth
Amendment?
DECISION?
No: 7-1 DECISION AGAINST PLESSY.
Reason for Holding:
In the 7-1 decision, Supreme Court ruled in favor of Ferguson. The majority rejected Plessy’s
arguments involving the 13th and 14th Amendment, stating that it gave blacks “a badge of
inferiority”. Court deemed the 14th Amendment enforces equality among color but not the
differences. The Courts decided to validate “Separate but Equal.” Issue that Louisiana law did
not in fact conflict the 14th Amendment. That officers have power to assign passengers to their
belong coach. Question that remined was whether or not it the action was reasonable and was an
act of good faith.
RULE
The government officially accepted the “separate but equal” doctrine. Which was also
used for segregation in public facilities. For example, restaurants, hospitals, railroad cars, and
schools. Blacks and white Americans can now receive separate services if they are deemed
equal. Court legally accepted “Separate but Equal” doctrine into America which allowed
segregation laws.
DISENT
John Marshall Harlan, disagreed, arguing that segregation makes society accept that
different races are not equal. Arguing that the Constitution “is blind” and does not permit classes
between different races. The Courts deemed that the purpose of the 14th Amendment was
“enforce[ing] the absolute equality of the two races before the law.” As stated by the Court, the
14th Amendment was concerned with the legal equality not social. All citizens are equal before
the law and that legal segregation contradicted humans’ political equality.
Please answer one of the following:
Do you grant the Court’s decision against Plessy? Why or why not?
How did Plessy v Ferguson affect segregation in the United States?
Would it have made a difference if the court had ruled segregation unconstitutional?

Brown vs. Board of Education (1954)
● U.S. Supreme Court
● 347 U.S. 483
Facts
In 1896, the Supreme Court heard Plessy v. Ferguson and created the separate but equal doctrine. The separate but equal doctrine established that racially segregated public schools were legal as long as the facilities for blacks were equal to their white counterparts. In Brown vs. Board of Education of Topeka (1951), a group of 13 parents sued the Topeka School Board. The parents asserted that segregation denied their children of equal protection of the laws established by the fourteenth amendment.
Nature of the Case
A panel of three district court judges ruled in favor of the Topeka school board. The judges cited the separate but equal doctrine established in Plessy v. Ferguson (1896) and concluded that the facilities for the black students were largely equal to the facilities for white students.
Subsequently, Brown was appealed to the Supreme Court. Brown vs. Board of Education (1954) was consolidated with four other cases involving racial segregation in public schools from Kansas, South Carolina, Virginia, Delaware, and Washington D.C.
Legal Issue/Question
Whether state sponsored racial segregation can continue in public schools. More specifically, does segregating public schools on the basis of race violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Holding
No, the Supreme Court unanimously voted in favor of Brown. By doing so, the court overturned the separate but equal doctrine established in Plessy v. Ferguson. The court issued this reason:“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated … are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
Reason for Holding
Chief Justice Earl Warren argued that separate educational facilities for white and black students were inherently unequal. First, Chief Justice Warren noted the importance of education. Since it “is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” the court concluded that education must be available to all children on equal terms. However, separating black students solely on the basis of race generates a feeling of inferiority in respect to their status within their community that affects their hearts and minds in a way that is unlikely to ever be undone. Therefore, the court held that segregation in public schools deprived the plaintiffs of equal protection under the law.
Rule of Law
The segregation of public schools solely on the basis of race violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. This decision overturned the separate but equal doctrine established in Plessy v. Ferguson.
Questions
1. Using a Borkian framework, do you believe that in this decision the judges misused the
Equal Protection Clause of the Fourteenth Amendment to construct new rights?
2. Does legally outlawing segregation actually result in de facto integration?
3. Given the time period and setting, how would a legal moralist such as Devlin respond to
the Brown vs. Board of Education decision? In contrast, how would a legal paternalist
like Dworkin or a legal positivist like HLA Hart respond?

Korematsu v. United States
323 U.S. 214
(1944)
Facts:
Korematsu was a 23 year old man who had grown up and lived in California all his life. After the
bombing of Pearl Harbor, President Franklin Roosevelt signed Executive Order 9066 into order.
This order would force anyone of Japanese dissent to relocate from their homes and live in
campgrounds which were created specifically for this order. At this time, Korematsu decided he
would not be relocating, despite the fact that his parents had left their home and business
behind to comply with the order. After receiving plastic surgery to change the appearance of his
eyes, he changed his name and claimed to be of Hawaiian dissent. After 6 months, he was
arrested and jailed. Korematsu was represented by the American Civil Liberties Union. They lost
at trial court and again lost the appeal. Unfortunately, the case was also lost at the Supreme
Court on the grounds that the military had the greater good for the public at the center of their
reasoning for discrimination. It was not until 1983 that the Supreme Court re-opened
Korematsu’s case due to newly found evidence that the previous courts had suppressed. The
findings showed agents knew that at this time Japanese were no longer a threat to Americans.
With this new evidence Korematsu was released and it was found that the Executive Order
9066 violated the 14th Amendment.
Nature of the Case:
Korematsu was convicted of violating Executive Order 9066. He was also convicted of violating
Order No. 1, 8 Fed. Reg. 982 and Civilian Exclusion Order No. 34. The Ninth Circuit affirmed
these convictions and the Circuit Court of Appeals upheld this ruling as well. The Supreme Court
found that there was no racial discrimination in this situation because of the danger that
Japanese could potentially hold against America during a time of war. In 1983 new found
evidence was brought to light which cleared Korematsu’s name and showed Executive Order
9066 violated his 14th Amendment rights.
Issue:
Did Executive Order 9066, Order No. 1, 8 Fed. Reg. 982, and Civilian Exclusion Order No. 34
violate Japanese Equal Protection Clause under the 14th Amendment?
Holding:
Executive Order 9066, Order No. 1, 8 Fed. Reg. 982, and Civilian Exclusion Order No. 34 did not violate Korematsu’s 14th Amendment rights (6-3 ruling).
Reason for Holding:
The orders were not in violation of the Equal Protection clause because of the potential threats
posed during times of war and thus were allowed under the war time powers of the legislature.
Although the issue of racial prejudice was acknowledged, the courts determined that Japanese
held a much higher value to their homeland and had too much potential for being a traitor. The
case looked at the precedent set in Hirabayashi v. U.S. where the military powers were declared
“necessary protective measures”. Based on this and the justification of racial discrimination
showed by the precedent, no rights were violated by these wartime orders.
Rule of Law:
During times of war, congress and the President may enact laws in order to protect the country.
At times this may include acts which are discriminatory or intrusive so long as there is logical
justification. In the case of Hirabayashi v. U.S., racial discrimination was justified due to the
loyalty that Americans believed Japanese had to their “motherland”. Frankfurter also stated
“martial necessity arising from the danger of espionage and sabotage’ warranted the military’s
evacuation order”.
Dissent:
Justice Robert Jackson reversed the indictment by claiming “the exclusion order ‘the
legalization of racism’ that violated the Equal Protection Clause of the 14th Amendment”
(USCourts). In this reversal, he discusses the unfair and unequal consequences that these
orders had against people who were of Japanese dissent that had lived in the United States as
citizens since they were born, therefore they did not have the tie or loyalty to their homeland
as the officials feared at the time. Not only were the justifications invalid for the creation and
substantiation of these orders, they violated Japanese citizens rights through expressions of
racism and inequality.
Questions:
1. Do you think that the orders were justified at the time of war? Why or why not?
2. If you could rephrase the orders how would you adjust them to make them
constitutional? Why?
3. Should there be consequences for President Franklin Roosevelt or the officers who
enforced the unconstitutional orders? Why or why not?
Works Cited
“Korematsu v. United States.” Oyez, www.oyez.org/cases/1940-1955/323us214. Accessed 9 Nov. 2020.
United States Courts. “Facts and Case Summary – Korematsu v. U.S.” United States Courts, 2020,
www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summarykorematsu-
v-us.

ANSWER

Analysis of the Commonwealth vs. Sherry Case and the Korematsu v. the United States

Analysis of the Commonwealth v Sherry Case and the Korematsu v. the United States

Commonwealth v. Sherry Case

The Commonwealth v. Sherry case presents a rape case in which three men were convicted for rape based on the holding that the victim did not consent. The jury’s conviction process was in accordance with the law that influences decision-making in rape cases. In rape cases, I agree that a victim is not limited to only physical resistance to justify sexual assault and influence the court ruling on the defendants’ conviction. Verbal resistance is equally strong and justified with a similar weight as physical resistance when deciding rape cases. According to the DOJ, rape is defined as “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim” (Gilna, 2016). The latter part is underlined to stress my opinion regarding the strength of verbal consent as a consideration to justify rape charges, which is consistent with the General Law: G.L.c. 265, § 22 (Commonwealth v. Sherry, 1982). Using the Commonwealth v Sherry case, the defendants claimed that they did not feel they were committing any rape, as the victim did not physically resist. However, the victim did not consent verbally to have sexual intercourse with the three men. I second the jury’s reasoning that resistance to show lack of consent can be verbal or physical.

In all court cases, the defendants and plaintiffs present different versions of the case, providing different facts that favor themselves. However, as a jury member, I would justify taking one testimony over the other based on two aspects. They include the facts, evidence presented, and following the rule of law, which provides for aligning the justification of a testimony with the developed General and Statutory Rape laws guiding the ruling of the criminal offense. Following the rule of law and facts presented helps maximize objectivity minimizing subjective reasoning that may cloud judgment and impede effective decision-making.

Korematsu vs. the United States

The enforcement of Executive Order 9066 by President Franklin Roosevelt was valid and justified during the time of the war as it acted as a strategic national security approach, evacuation, and preventive measure essential to keeping the USA, its citizens, and most notably the West Coast, the region nearest to Japan safe and secure from invasion. Some of the judges claimed that the Executive Order legitimized institutional and systematic racism, which violated the Fourteenth Amendment of Equal Protection Clause (Korematsu v. United States, 1944). However, the motive and order were a military necessity for national security, making it appropriate and suitable during the event at hand and not a show of racial discrimination or prejudice. As the commander-in-chief, the president was constitutionally mandated to ensure the American citizenry’s safety and security; it is not to say that racial groups’ rights are not important. The historical context in which it was enforced was reasonable and justified; hence, no action would have been taken against President Franklin Roosevelt.

The critiques of this case argued that the Fourteenth Amendment was violated, which contends that people are American citizens if they are born or naturalized in the country’s jurisdictions, and no laws should be enforced to infringe their rights, immunities, or privileges. When establishing what to rephrase, one must consider allegiance. If Japanese Americans swear allegiance to the USA, they would be spared from the Executive Order. However, as a President, to maintain national security, one cannot base their trust on words and allegiance promises, as they can be broken. Therefore, the Executive Order would remain originally developed and not target any specific group, as was the case with the Executive Order 9066. Those showing allegiance would be monitored closely and strictly until the threat subsides, with repercussions being legal action for those found violating the allegiance laws.

References

Commonwealth v. Sherry, 437 N.E.2d 224 (Massachusetts Supreme Judicial Court 1982).

Gilna, D. (2016, August). Department of Justice Expands Definition of Rape to “Ensure Justice”. Retrieved from https://www.prisonlegalnews.org/news/2016/aug/22/department-justice-expands-definition-rape-ensure-justice/

Korematsu v. United States, 323 U.S. 214 (United States Supreme Court case December 18, 1944).