Rape charge dismissal called error by judge

August 05, 1994

In an opinion requested by a prosecutor, Maryland's attorney general said yesterday that a Frederick County judge erred when he dropped a rape charge against a man accused of sexually assaulting his estranged wife at gunpoint.

Frederick County Circuit Judge G. Edward Dwyer Jr. dismissed the charge against Charles Caudill, citing an exemption in Maryland's marital rape law -- namely, that the couple had engaged in consensual sex before the rape and while they were separated.

But Attorney General J. Joseph Curran Jr. said in a written opinion that the judge's interpretation of the rape law was flawed, that "if force is used in the commission of a rape, it doesn't make a bit of difference whether there was a mutual cohabitation even the day before the incident."

Mr. Caudill, 35, was arrested Dec. 9, 1992 near Myersville after briefly holding police at bay with a gun to his head.

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