¶1concurring. I agree that this conviction can be affirmed, but write separately to emphasize that the element of “forcible compulsion” necessary to establish the offense of rape in Arkansas is and has always been more than simply saying “no,” in the case of an adult victim. “Forcible compulsion” must be established by “physical force” or a “threat, express or implied, of death or physical injury to or kidnapping of. . . .” a victim. Ark. Code Ann. § 5-14-101(2) (Supp. 2001). Physical force is defined as “any bodily impact, restraint or confinement, or the threat thereof. . .” Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996).
¶2Although the supreme court has often said that the “test” to be used to determine whether there was force is “whether the act was against the will of the [victim],” it has done so only in a context where there is clear evidence of some act by the defendant which establishes the requisite force. See e.g., Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999) (appellant abducted adult victim at gunpoint); Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996) (appellant choked, dragged, and threatened to kill adult victim, and victim was injured and in disheveled condition); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994) (appellant confined adult victim in his patrol car on deserted road and pulled victim back when she tried to get away); Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973) (appellant placed knife to adult victim’s throat).
¶3The supreme court has further stated that subjective feelings of fear of physical injury by a victim must be based on some act of the accused that can be reasonably interpreted to warrant such fear. Banks v. State, 277 Ark. 28, 639 S.W.2d 509 (1982) (emphasis added) (citing Mills v. State, 270 Ark. 141, 603 S.W.2d 416 (1980)). Consequently, the element of forcible compulsion must necessarily focus on the accused’s conduct and statements, not on the victim’s statements or fear. In this instance, the evidence regarding Johnson’s conduct and statements is thin; perhaps we have allowed the victim’s very dire circumstances to bolster the evidence against Johnson. The fact that Johnson and the victim were strangers is viewed by the majority as providing an enhanced menace or threat that his language and behavior would perhaps not have conveyed in other circumstances. However, there is no question that the victim in this case was kidnapped, confined, and was in fear for her life, or that she was justified in such fear. Here, Johnson contributed to or prolonged that confinement or fear to some extent, and his conviction can be and should be affirmed.