The Kickham Comment - Boston Criminal Attorney Blog
Here’s a twist on an old issue involving Massachusetts rape charges: A victim claims she/he was raped. Importantly, before going further, let’s make sure that we understand what the legal elements of rape are in Massachusetts, which are as follows:
1) Penetration of any bodily orifice by any part of the body, or by an object, performed against the victim’s will,
2) Without the victim’s consent, and
3) Accompanied by the threat of or actual use of force.
Importantly, exerting physical force against a victim in order to engage in sexual intercourse isn’t the only way that a rape can occur. If a victim is unable to give consent for some reason such as intoxication, mental impairment or unconsciousness, intoxication or mental impairment, that would also constitute rape. Physical violence is not always a pre-requisite to either a Massachusetts rape charge, or a conviction.
The above are the basic legal elements that must be proven by the prosecution before a jury or judge can convict a defendant of a charge of rape. But what if things aren’t as clear-cut as the above? For example, what if the victim claims that while she or he initially consented to sex, he/she later withdrew that consent, during the act? Then what? Should the defendant be convicted of rape under those circumstances? The Massachusetts Supreme Judicial Court (SJC) recently issued a ruling on such a case. In Commonwealth vs. Sherman, a man was charged with raping a woman he had met in a bar one night. When they met, the victim communicated to the defendant defendant that she was gay and not interested in anything sexual, but she still visited his apartment later that night, where she alleged that he forcibly raped her. The man was arrested and prosecuted on a charge of forcible rape. As part of his defense, the defendant claimed that the victim had consented to intercourse.
At jury deliberations, the jury sent a special question to the judge: Could initial consent to sex become rape if the victim changed her mind about the consent, after penetration? The trial judge ruled that if an alleged rape victim withdrew his or her consent after penetration, the jury could convict on a count of rape, so long as the prosecution proved lack of consent and use of force. The defendant was convicted, and appealed, his lawyer arguing that the trial judge should have instructed the jury that in order to convict the defendant of rape under circumstances where the alleged victim claims that consent was withdrawn, the victim would need to have communicated the withdrawal of his or her consent to the defendant. This, of course, begged the question of what “communicated” means – what acts would constitute “communication” of the withdrawal of consent that was initially given? Verbal? Non-verbal? Passive? Aggressive? Loud? Or barely audible?
The SJC ruled that a victim need only have “reasonably communicated withdrawal of consent in such a manner that a reasonable person would have known that consent had been withdrawn.”> The court added that such “communication” could be either verbal or non-verbal (i.e., body language.) Quoting from the court’s opinion, “Where the initial penetration (of a bodily orifice) was consensual, the fastest and clearest way to draw the line separating consensual sexual intercourse from post-penetration rape is to require, as an element of the offense, that the victim reasonably communicate to the defendant his or her withdrawal of consent.” >What concerns me as a Boston area sex crimes lawyer, is the court’s instruction that >”We emphasize, however, that the Commonwealth need not prove that the defendant actually knew> that the victim withdrew consent. >(bold emphasis added.) > It suffices that the victim ‘reasonably communicated’ the withdrawal of consent in such a manner that a reasonable person would have known that consent had been withdrawn.” >Query: If a defendant was not actually aware that the alleged victim had withdrawn consent, then where is the requisite intent?
So, where does that leave the law on Massachusetts rape charges? That depends on who you ask. Ask a prosecutor, and they’ll tell you that this is a positive development, and that it doesn’t really change the current law on this crime, as a jury instruction on the law of withdrawn consent , is only required in very limited circumstances (i.e., not many cases.) Ask a Massachusetts rape charge defense lawyer, such as myself, and you’ll hear a more ominous viewpoint. In my professional opinion as a Boston sex crimes lawyer, I think this decision, while meaning to produce clarity, only further muddies the waters in these cases, which many times can be difficult to see through to the truth. Specifically, the prosecution will still need to prove force, duress or some kind of threats against the alleged victim, but such force won’t need to be more than a continuation of the sex act (penetration). As long as the alleged victim claims that he or she ‘withdrew consent’ in his or her own mind at some point, then the defendant could be convicted.
“Buyer’s Remorse” is one thing. But rape is another. And in my professional view a person should not be convicted of rape, unless the alleged victim made withdrawal of consent much clearer than this decision indicates will be necessary, moving ahead with these kinds of cases. Contrary to what many people think, rape is not always a violent act – black or white. Many times it is grey, sometimes alleged even between married spouses. And also contrary to what many people think, accusations of rape do not only occur between members of the opposite sex. Same sex rape charges are increasingly common, including between gay dating partners or even gay spouses. Human failings and weaknesses don’t respect gender preferences.