116 N.E.3d 597
Mass.2019Background
- Victim and defendant met at bars, exchanged texts, and the victim went to defendant's apartment late Oct. 13–14, 2014; sexual activity followed and the victim later reported rape.
- Victim testified she told defendant she was gay, told him to stop, and that intercourse was nonconsensual throughout; she sought medical attention and police responded that morning; stains consistent with the victim's blood were found on defendant's underwear, bed, and hand.
- Defendant testified all sexual acts were consensual, denied cocaine use that night, and said oral sex occurred first; he was arrested after officers observed bloodstains and a white powder (believed cocaine) in his apartment.
- Jury was instructed that Commonwealth must prove intercourse and that "at the time of penetration" there was no consent; during deliberations the jury asked whether intercourse that begins consensual can become rape if consent is withdrawn mid-act.
- Judge answered yes in general terms (that intercourse can become unlawful if lack of consent and force are proven) but did not instruct that the victim must reasonably communicate withdrawal of consent to the defendant; jury convicted on penile-vaginal and digital-vaginal rape, acquitted on penile-oral rape.
- Defendant appealed, arguing (1) the judge should have instructed that continued penetration after withdrawal is rape only if the victim reasonably communicated withdrawal and the defendant continued despite that, and (2) it was error to admit cocaine evidence to assess memory without expert proof of cocaine’s effects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury should have been instructed that initially consensual intercourse becomes rape only if victim reasonably communicates withdrawal of consent and defendant persists | Commonwealth: no separate instruction needed because force/constructive force element necessarily requires a showing equivalent to communicated withdrawal | Sherman: instruction required; without it jury could convict despite no actual communication of withdrawal | Court: Instruction on communicated, reasonable withdrawal is required in withdrawn-consent cases or when jury asks; omission was error but harmless here because no evidence showed consent was withdrawn after penetration |
| Whether admitting evidence of cocaine for assessing defendant's ability to perceive/recall was proper without expert testimony | Commonwealth: evidence admissible to challenge credibility and ability to recall; also impeachment | Sherman: improper because no expert connected cocaine use to impairment that night; prejudicial | Court: Admission for memory/perception required expert link; judge erred to the extent he allowed it for that purpose, but error was harmless given lack of impact on verdict |
Key Cases Cited
- Commonwealth v. Lopez, 433 Mass. 722 (defendant need not know lack of consent; rape elements include force/constructive force and lack of consent)
- Commonwealth v. Blache, 450 Mass. 583 (where complainant incapable of consenting due to intoxication, Commonwealth must prove defendant knew or reasonably should have known of incapacity)
- Commonwealth v. Kennedy, 478 Mass. 804 (survey of consent and mistake-of-fact jurisprudence post-Lopez and Blache)
- Commonwealth v. Enimpah, 81 Mass. App. Ct. 657 (where initial consent withdrawn and defendant forcibly continued, jury could find rape)
- In re John Z., 29 Cal. 4th 756 (holding intercourse becomes forcible rape when victim objects and defendant forcibly continues despite objection)