Commonwealth v. CaracciolaCommonwealth v. Caracciola
Lead Opinion
The defendant was indicted on a charge of rape under G. L. c. 265, § 22. Pursuant to Commonwealth v. McCarthy,
The judge summarized the grand jury testimony as follows. The defendant, who is not a police officer, pulled his vehicle alongside the victim on a downtown Springfield street. He told the victim to get off the street. She noticed that he was wearing a gun. The victim left and went to thе bus station to make a telephone call. After watching her for a while, the defendant approached the victim again and said, “I thought I told you to get lost.” The defendant told the victim to get in the automobile, and she obeyed. The defendant drove in what the victim believed to be the direction of the police station. The victim began to cry and the defendant told her that if she did not stop crying he would “lock [her] up for more things than [he] was planning on.”
The judge determined that there was no evidence presented to the grand jury that the defendant used force on the victim. He concluded that the motion to dismiss should
“The better practice is for a judge to decide the issues raised by a defendant’s motion to dismiss. In the event of conviction, appellate reviеw is available to a defendant. ... If the motion to dismiss is allowed, the Commonwealth has the right to appeal. See Mass. R. Crim. P. 15 (a),
Although it is “the well established principle that the adequacy of the evidence presented to the grand jury cannot be tested by a motion to dismiss,” Commonwealth v. Robinson,
General Laws c. 265, § 22 (b), provides, “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily
We do not agree with the judge’s assessment that no evidence was presented to satisfy the statutory words “by force and against [her] will.” The words of the statute are not limited solely to physical force.
Because robbery and rape are both crimes of violence, there is no reason to conclude the Legislature assigned a different, more limited meaning to the word “force” in the rape statute from its meaning in the robbery statute. In discussing the word force as used in robbery, the court said that “actual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind.” Commonwealth v. Novicki,
Relying on Commonwealth v. Goldenberg,
The statute requires that the Commonwealth prove its case by demonstrating that the person charged has sexual intercourse or unnatural sexual intercourse with a person either “by force and against his will” or “by threat of bodily injury.” See G. L. c. 265, § 22 (6), supra at 650-651 (emphasis supplied). Thus, contrary to the dissent, a strict reading of the statute does not limit the Commonwealth’s proof to the use or threat of bodily injury.
Applying the statutory language to the evidence presented, we conclude thеre was evidence of force and constraint of the victim’s will. The evidence indicates that the defendant wore a gun; that he ordered the victim into his car; that he named a number of police officers; that he gave her a false name; and that he told her he was a police officer, and would imprison her if she did not obey him. The defendant made the complainant beg him not to “lock her up.” The facts indicate that the woman was “petrified” by the defendant’s threats that he would “lock her up.” The issue whether, in light of the circumstances, the victim’s obedience or submission to the defendant’s threats was by force and against her will is for the petit jury.
The evidеnce before the grand jury was similar to that found sufficient to support rape convictions in cases from other jurisdictions. In State v. Burke,
So ordered.
Notes
Although the judge does not specifically find this fact, the victim asserted in her statement to police read to the grand jury that, “He mаde me beg him not to lock me up.” In considering the defendant’s motion, we view the evidence in the light most favorable to the Commonwealth.
The victim’s statement also indicates that she believed the defendant was a police officer because he knew many of the officers in the Crime Prevention Bureau. She also stated that the defendant asked her if she had heard of Carlo D’Amato. When she said no, he said, “That’s me.”
Although the judge did not report it as fact, the transcript of the grand jury proceedings indicates that, after her statement had been read, the victim added the following comment: “I would just like to mention, it doesn’t sound like I was in any fear there. I was really scared. I was petrified he was going to put me in jail. I had a prior criminal record and I felt if I got arrested one more time, I was going to go to Framingham.”
The precise question reported was: “Is the Massachusetts Supreme Judicial Court's ruling in Commonwealth v. Goldenberg[,
The evidence before the grand jury did not focus on the question whether the defendant used his gun (which was in plain view) in any manner or displayed it so as to permit this case to go to the jury on the question of a threat of bodily injury. We therefore do not discuss that aspect of the statute.
A dictionary defines “force” as “to constrain or compel by physical, moral, or intellectual means.” Webster’s New International Dictionary 986 (2d ed. 1959).
In Goldenberg, that defendant told the complainant “he had to have intercourse with her,” that “it would help in some way.” Goldenberg, supra at 380. Additionally, the complainant in Goldenberg said that “she knew it was not right,” that she “felt very dizzy and very, very funny,” that she felt “powerless in a way,” and that even if “she wanted to do something she did not believe that she could have.” Goldenberg, supra at 381. Those facts are a far cry from the conduct and threats by this defendant. The fear experienced by the complainant in this case was not present in Goldenberg.
Although the dissent invokes a wealth of statutory construction principles, it does not mеntion “the rule that where the Legislature has employed specific language in one [clause], but not in another, the language should not be implied where it is not present.” Commonwealth v. Galvin,
Although the Rhode Island statute at issue in Burke is worded differently from G. L. c. 265, § 22, the differences are immaterial. The Rhode Island law proscribes sexual intercourse achieved by “force or coercion.” The definition of “force or coercion” that was at issue in Burke was “when the accused does any one of the following: . . . (C) coerces the victim to submit by threatening to use force or violence on the victim and the victim reasonably believes that the accused has the present ability to execute those threats.” R.I. Gen. Laws § 11-37-1 (1981 Reenactment). See Burke, supra at 734. Coercing the victim to submit by threatening to use force or violenсe is essentially the same as “compel [ling] such person to submit by threat of bodily injury.” G. L. c. 265, § 22 (b). The only difference is that the Rhode Island law has the added requirement about the victim’s belief in the defendant’s ability to carry out the threat. Although our statute does not have such a requirement, the evidence before the grand jury more than satisfied that standard.
At oral argument, the defendant emphasized the court’s statement in Walter that “we do not rule that a rape occurs when a victim yields solely because an officer threatens to arrest her.” Id. However, the court went on to say that the additional evidence demonstrating the fear into which the victim was placed was sufficient to prove force or lack of consent. The case at bar likewise contains evidence beyond an isolated threat to arrest. The evidence, if believed, proves that the intercourse resulted from the coercive
The defendant contends that the case of People v. Cavanaugh,
The defendant cites the Opinion in Support of Affirmance in the Mlinarich case to demonstrate that other jurisdictions require “evidence of force or threats” in addition to nonconsent. As a preliminary comment, that opinion states a view of Pennsylvania law held by only three of the participating members of the Pennsylvania Supreme Court. The Justices were еqually divided over whether to affirm the Superior Court’s reversal of a rape conviction. The court’s stalemate permitted the lower court decision to stand. More substantially, however, that opinion demonstrates the extremes to which a restrictive construction of a rape statute can lead. The defendant, a sixty-three year old man, engaged in a pattern of sexual
Dissenting Opinion
(dissenting). “At common law, rape was defined as ‘the carnal knowledge of a woman forcibly and against her will.’ 4 W. Blackstone, Commentaries 210 (1778).” Commonwealth v. Chretien,
Thus, for several hundred years, a proper understanding of the word “force,” as used in the Commonwealth’s rape statutes, has been critical to their application, and nothing suggests that, as successor statutes or amendments were enacted, the Legislature intended a redefinition of that term. Nevertheless, not until today has this court discovered that the Legislature, presumably from the beginning, has intended “force” in rape to include constructive, as well as physical, force. The very lateness of the court’s discovery makes it questionable. This is especially so when one considers the principle, deeply imbedded in our jurisprudence, that criminal statutes are to be strictly construed against the Commonwealth. I do not agree that the word, “force,” in G. L. c. 265, § 22, clearly refers to constructive, nonphysical, force.
One may well argue that there ought to be a law criminalizing the kind of conduct ascribed to the defendant before the grand jury and that the range of penalties ought to be the same as provided in G. L. c. 265, § 22 (6), for rape. But those are matters for the Legislature, not judges, to resоlve. The court’s responsibility is to interpret statutes as they are written and, with respect to criminal statutes, to resolve statutory ambiguities against the government. As Justice Holmes wrote in McBoyle v. United States,
Citing Commonwealth v. Therrien,
The victim in this case told the grand jury that the defendant, wearing a gun, told her to get into the car with him and that he started driving toward the police station. She said that she “started to cry and he said that if [she] cried he would lock [her] up for more things than he was planning on. He made [her] beg him not to lock [her] up.” Explaining why she submitted to intercourse, the victim testified: “I felt that if I did not do what he wanted, he was going to arrest me. ... I was really scared. I was рetrified he was going to put me in jail. I had a prior criminal record and I felt if I got arrested one more time I was going to go to Framingham.” There was no suggestion in the victim’s testimony that she submitted to intercourse because of a threat of bodily injury. The victim’s testimony was clear. She submitted in order to avoid arrest, prosecution, and resulting imprisonment. Surely, there is nothing in Therrien that implies that one who obtains intercourse by fraudulently impersonating a police officer and threatening the victim with arrest, prosecution, and imprisonment violates G. L. ó. 265, § 22 (¿>).
The court states: “No case has held that rape is limited solely to the use of physical force. Indeed, the words of the statute аre to the contrary.” Ante at 651-652. Of course, I do not contend that rape is limited solely to the use of physical force. As the statute expressly provides, rape also includes threat of bodily injury as a means to compel intercourse. My contention is that rape consists of a use of physical force or a threat to do bodily injury — related concepts — in order to compel a person to submit to sexual intercourse. If the court’s intention is simply to point out that we have never before said that the word, “force,” in our rape statute is limited to physical force, my response is that apparently, despite the resourcefulness оf prosecutors, no one ever before has argued to this court that a rape may be committed without
The out-of-State cases mentioned by the court warrant little discussion. I shall refrain from distinguishing the out-of-State statutes from G. L. c. 265, § 22. It is enough to say that the core of each of those decisions is the court’s conclusion that the evidence was sufficient to warrant a finding that the defendant compelled the victim to submit to intercourse by threatening bodily injury. Those cases do not support the court’s construction of G. L. c. 265, § 22 (b).
I turn to the court’s argument that, “[bjecause robbery and rape are both crimes of violence, there is no reason to conclude the Legislature assigned a different, more limited meaning to the word ‘force’ in the rape statute from its meaning in the robbery statute.” Ante at 652. The court’s argument seems to assume that the word, “force,” in the robbery statutes, G. L. c. 265, § 19, and c. 277, § 39, is not limited to physical force. The court’s assumption is unjustified. Chapter 265, § 19, provides in relevant part that “[wjhoever ... by force and violence, or by assault and putting in fear” steals from another shall be punished. Chapter 277, § 39, defines the word, “robbery,” as “[t]he taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.” The robbery statutes distinguish between “force and violence” (physical force) and “assault and putting in fear” (constructive force), and it is clear from our robbery cases that “assault and putting in fear” is the equivalent of threat of bodily injury. Thus, an interpretation of “force” in the rape statute as referring only to physical force does not suggest that the Legislature assigned a more limited meaning to that word in the rape statute than in the robbery statutes. The rape statute and the robbery statutes criminalize the use of physical force or threat of bodily injury to accomplish different objectives.
The court’s construction of G. L. c. 265, § 22 (6), not only runs counter to the important principle that criminal laws must be construed strictly, but it also runs afoul of аnother, perhaps less important but nevertheless time honored and helpful, rule of statutory construction. The statute’s express provision that it is a crime to compel a person to submit to sexual intercourse by “force ... or ... by threat of bodily injury,” forcefully suggests that the word “force” in that context does not include threat of bodily injury. If “force” does include threat of bodily injury, the words “or ... by threat of bodily injury” add nothing to the statute. “Where it is possible, as it is here, a statute should be construed so as to avoid rendering words in that statute meaningless.” A Juvenile, petitioner,
There is one more ancient aid to statutory construction that the court has chosen to ignore: “Expressio unius est ex-clusio alteráis.” Innella v. Fire Comm’r of Boston,
General Laws c. 265, § 22 (6), provides that “[wjhoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished . ...” By a process of reasoning that I am unable to understand, the court concludes that the construction of c. 265, § 22 (b), for which I argue “reads out of the statute the requirement that the force used be against the will of the person so compelled,” whereas if the statute is construed as the court construes it, those words are given meaning. Ante at 654. Of course, the rеlevant rule of construction is that meaning must be given to every statutory word “[wjhere it is possible” to do so. A Juvenile, petitioner, supra at 536. Here, the words, “by force and against his will,” appear to be redundant no matter which construction is adopted because the act of compelling a person to submit to intercourse necessarily involves a violation of that person’s will, and that is true regardless of whether the compulsion is accomplished by physical or nonphysical force. The court’s interpretation of the statutory word, “force,” as including nonphysical force does not give any meaning to the phrase, “and against his will,” that that phrase would not have if the word, “force,” were limited to physical force.