The Kickham Comment - Boston Criminal Attorney Blog

In my career, more than one person has asked me the oft-repeated question, “How can you defend people accused of rape and other terrible crimes?” My answer is always the same: “What if it were you who were accused? Would you want everyone to just assume that you were guilty, and throw away all presumptions of innocence and legal safeguards? Because someone is accused of a crime does not necessarily mean that they are guilty – legally guilty or factually guilty.”

Exhibit “A” on that point is a case I wrote about a couple of months ago, concerning a Boston University student by the name of Max Nicastro, of Thousand Oaks, CA, who was accused of rape by a female student. NiCastro was a star on the BU men’s hockey team, and thought by many to be headed for a career as an NHL pro. He had been a 2008 draft pick for the Detroit Red Wings; he had a promising career.

All that ended with the pointing of an accusatory finger by the young woman who made the accusations against Nicastro (the woman’s name was never released for understandable reasons): After he was arrested on February 19, he was suspended from the BU hockey team, and “withdrew” from the school (there was no comment at the time from either BU or NiCastro as to whether his departure from the school was voluntary or not.) Fast forward 3 ½ months to present: It seems that after extensive investigation, Suffolk County District Attorney Daniel Conley’s office has decided to drop the charges against NiCastro. Reason: Insufficient evidence to prove their case. The DA’s own office acknowledged that the office and “had an ethical obligation not to pursue it further.” Exactly what happened, I’m not presently aware. And I laud the DA’s office for reaching the decision they did. I think Dan Conley is a responsible and ethical prosecutor. I’ve worked with many a District Attorney’s office in defending Massachusetts sexual assault cases, and I know this: If they had any credible evidence to move the case forward, they would have.

As a Massachusetts rape attorney, it is my duty to zealously defend my clients to the best of my ability. However, there are certain things a rape defense lawyer cannot do in the process of defending a client in court.

In the past, criminal defense lawyers would utilize a certain strategy in order to win their rape cases. This very frequently involved bringing up information about the alleged victim’s prior sexual history, and thus, undermining the accuser’s credibility. This now-outmoded legal practice discouraged many alleged rape victims (almost always women,) from pressing charges at all, for fear of aggressive cross-examination in court about their sexual history. Many people, primarily women’s rights activists, felt this courtroom practice should be prevented, since merely because an alleged rape victim may have been sexually active in her (or his) past, did not necessarily mean that the alleged victim consented to the sexual contact that was at issue in a rape trial.

Things have changed, and most people can understand why. In all states today with the exception of Arizona, there exist “rape shield laws,” which prevent the defense from introducing evidence of an alleged rape victim’s prior sexual history or alleged sexual reputation. These laws were gradually introduced state-by-state in the 1970’s. In this state, the Massachusetts Rape Shield Law does not permit the introduction of a rape victim’s prior sexual history and sexual reputation by a defendant’s attorney. That law is governed by Massachusetts General Laws. Ch. 233, Section 21B. Before Massachusetts enacted its own rape shield law, a Massachusetts rape defense lawyer could employ this strategy in a variety of cases, not only in a Massachusetts rape charge, but in a variety of Massachusetts sex crimes charges, including statutory rape, aggravated rape, and assault with intent to commit rape.