97 Mass. App. Ct. 223
Mass. App. Ct.2020Background
- Defendant Brian Butler, a Salem police officer, interacted with James, a man in his late twenties who was intoxicated and held in protective custody at the station overnight.
- Butler twice entered James's cell alone in violation of department policy, removed James's remaining clothing, made sexually suggestive comments, and touched James's buttocks and groin.
- On the booking-room phone incident, Butler asked (and James verbally assented) whether Butler could "go inside," then massaged James's penis for about two minutes while James spoke on the phone; later Butler took James to an unsupervised broom closet and performed oral sex.
- James testified his verbal assent was given from fear and coercion (believing he could not safely refuse), and he did not physically encourage or participate; much of the conduct was captured on station video.
- Butler was acquitted of rape but convicted of indecent assault and battery; at trial he sought a mistake-of-fact-as-to-consent instruction (beyond the Blache incapacity instruction) and sought to introduce evidence that James identified as gay; the judge refused the broader instruction and excluded the sexual-orientation evidence.
- On appeal, Butler challenged (1) the refusal to give his requested mistake-of-fact instruction and (2) the exclusion of evidence about the victim’s sexual orientation.
Issues
| Issue | Commonwealth's Argument | Butler's Argument | Held |
|---|---|---|---|
| Whether the judge erred by refusing Butler's requested mistake-of-fact-as-to-consent instruction (beyond Blache incapacity instruction) | No—Blache instruction on incapacity was given and the evidence did not show an objectively reasonable mistake of consent | Butler argued jurors could find he honestly and reasonably believed James consented (pointing to James's verbal "yes" and lack of physical resistance) | Court affirmed: judge properly refused instruction because any subjective belief was objectively unreasonable given custody, power imbalance, prior touching, removal of clothing, isolation, and intoxication/incapacity |
| Whether the judge erred in excluding evidence that the victim identified as gay | Evidence not relevant and barred by rape-shield statute; sexual orientation does not bear on consent | Butler argued it made consent more probable (i.e., gay man more likely to consent to another man) | Court affirmed exclusion: irrelevant, unsupported, and barred by rape-shield protections |
Key Cases Cited
- Commonwealth v. Kennedy, 478 Mass. 804 (2018) (recognized limited availability of mistake-of-fact instruction in indecent-assault cases)
- Commonwealth v. Blache, 450 Mass. 583 (2008) (authorized mistake-of-fact instruction limited to incapacity from drugs/alcohol)
- Commonwealth v. Lopez, 433 Mass. 722 (2001) (force negates mistake-of-fact defense in rape context; mens rea regarding lack of consent generally not required)
- Commonwealth v. Moran, 439 Mass. 482 (2003) (refusal to give mistake-of-fact instruction when facts do not warrant it)
- Commonwealth v. Grant, 391 Mass. 645 (1984) (discusses limits on mistake-of-fact defenses in sexual-offense cases)
- Commonwealth v. Simcock, 31 Mass. App. Ct. 184 (1991) (instruction warranted only where evidence raises honest and reasonable mistake)
- Commonwealth v. Toon, 55 Mass. App. Ct. 642 (2002) (circumstantial evidence can raise defendant's subjective belief)
- Commonwealth v. Caracciola, 409 Mass. 648 (1991) (recognizes power of police over citizens and potential for coercion)