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SJC Holds that Commonwealth Must Prove Communication of Withdrawal of Consent in Rape Cases

what-s-that-1527433-300x264In Commonwealth v. Sherman, the Supreme Judicial Court dealt with an issue of first impression in a sexual assault case prosecution.  In the decision, the SJC opined that, in a rape case, “an additional element of proof — [the victim’s] communication of the withdrawal of consent — is required to avoid the risk of a reasonable mistake of fact in a case where the jury may find that the initial sexual penetration was consensual but that the victim withdrew consent during the course of continued sexual intercourse.”

The background was as follows. The victim testified that she and the defendant met at a pub and “[t]he defendant asked [her] if she wanted to ‘hang out’” at his apartment. She “agreed, but explained to the defendant that it was ‘just going to be … hanging out’ because she was gay.” At the apartment, the defendant “attempted to kiss [the victim] on the cheek. [She] responded by putting her hand out and telling the defendant that she was gay and that ‘it is not going past just hanging out.’ The defendant apologized multiple times,” but then proceeded to forcefully restrain the victim and to rape her several times. According to the victim, she “screamed ‘stop’ repeatedly and attempted to push the defendant off her.” Eventually, she was able to leave the apartment. She reported the incident to the police. Officers went to the defendant’s apartment and arrested him after he acknowledged that he had sexual intercourse with the victim. Later, the police searched the apartment pursuant to a warrant and discovered a spoon containing cocaine on the kitchen counter. The defendant testified that he and the victim engaged in consensual intercourse, “that the victim did not ask [him] to stop[] [or] push him away,” and that she “did not seem upset.” During their deliberations, the jury sent the judge a note seeking clarification of the “‘[d]efinition of the rape — does it include if she says No in the middle of the Act? In other words, is it rape if it started consensual and she changed her mind?’ After conferring with counsel, the judge” told the jurors that he understood their “‘question to be can lawful sexual intercourse become unlawful at some point during the act. The answer to that is yes…. Lawful sexual intercourse can become unlawful sexual intercourse, but remember that the Commonwealth has to prove … both portions of the second element [of rape]: Lack of consent and use of force or constructive force.’ Neither party objected to this instruction. Later that day, the jury found the defendant guilty” of two counts of rape. On appeal, “[t]he defendant claim[ed] that it was reversible error for the judge not to instruct the jury explicitly that, in order for initially consensual intercourse to turn into rape, a victim must communicate his or her withdrawal of consent to a defendant and the defendant must persist with intercourse despite the communication.”

In its decision, the SJC stated, “We … have no doubt that consensual sexual intercourse can become unlawful where the victim withdraws consent after the initial act of penetration has occurred…. [T]he fairest 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.” “We emphasize … that the Commonwealth need not prove that the defendant actually knew that the victim withdrew consent. 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…. The requirement of a reasonable communication protects a defendant who lawfully initiates sexual intercourse with a partner’s consent from being convicted of rape where the partner withdraws consent during sexual intercourse without communicating the withdrawal to the defendant.” The Court opined “that the jury question here warranted” an instruction on reasonable communication of withdrawal of consent, but that reversal was not required because “the jury’s verdicts would have been the same” even if the judge had correctly instructed the jury. The Court noted that “[t]he jury heard no evidence that the victim initially engaged in consensual … sexual intercourse with the defendant and then later withdrew her consent. The defendant testified that sexual intercourse was consensual at all times; the victim testified that it was never consensual…. In the absence of any evidence that the victim withdrew initially granted consent to … intercourse, we are persuaded that the lack of an instruction on the matter” did not create a substantial risk of a miscarriage of justice.

Also in this decision, the SJC agreed with the defendant’s contention “that it was error for the judge to allow evidence of drug use [the cocaine discovered in the defendant’s kitchen] to be admitted for the purpose of assessing the defendant’s memory where there was no expert testimony regarding cocaine’s effects on one’s ability to perceive and recall events.” However, the Court concluded that the error did not create a substantial risk of a miscarriage of justice because “[t]here was no evidence that drugs played any role in the” incident at the defendant’s apartment.

Although the results of this decision do not help the defendant in this particular case, it establishes good case law for future defendants.  If you or a loved is facing similarly serious sexual assault charges, you will need a practiced and skilled attorney who is up to date with any and all new developments in the law that could be used in defense of your case. Attorney Daniel Cappetta has handled numerous sexual assault cases and is familiar with the most recent case law required to obtain successful results. Call him for a free consultation today.

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