Suliveres v. CommonwealthSuliveres v. Commonwealth
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In Commonwealth v. Goldenberg, 338 Mass. 377, cert, denied, 359 U.S. 1001 (1959), we concluded that it is not rape when consent to sexual intercourse is obtained through fraud or deceit. In determining that
In Commonwealth v. Goldenberg, supra, we considered, as a matter of first impression,2 whether rape could be committed by fraud. Id. at 383. The Goldenberg case involved a woman who had gone to the defendant, a physiotherapist, to procure an abortion. Id. at 379-380. The defendant told her that, as part of the procedure, he “had to have intercourse” with her and that it would “help it some way.” Id. at 380. He then proceeded to have intercourse with her. Id. at 381. We noted that “it could not be found beyond a reasonable doubt that the intercourse was without her consent,” and that the evidence “negatived the use of force.” Id. at 383. Thus, the only way the defendant could have been convicted was if his fraudulent representation that the intercourse was medically necessary could both invalidate the consent and supply the requisite “force.” We concluded, however, that “[fjraud cannot be allowed to supply the place of the force which the statute makes mandatory,” id. at 384, and cited with approval a Michigan case, Don Moran v. People, 25 Mich. 356 (1872), which on “facts strikingly similar” had found no rape to have been committed.3 Commonwealth v. Goldenberg, supra at 384.
The defendant was indicted for rape and tried before a jury in the Superior Court. At trial, the main issue was whether the complainant knew at the time the identity of the person with whom she was having sex.5 The defense was that the sex was fully consensual. The defendant told an investigating police officer that the complainant had come to him while he was asleep in another room and had invited him to her bedroom to have sex with her. The Commonwealth argued that the defendant had
Procedural history. The defendant moved for a required finding of not guilty at the close of the Commonwealth’s evidence, but the motion was denied. The jury were unable to reach a verdict, and the judge declared a mistrial. The defendant then moved to dismiss the indictment, arguing that the Commonwealth had failed to present sufficient evidence to support a guilty verdict at trial, and that any subsequent retrial would thus violate common-law principles of double jeopardy. See generally Berry v. Commonwealth, 393 Mass. 793 (1985). When this motion was denied, the defendant sought relief from a single justice of this court pursuant to
Standard of review. In determining whether the Commonwealth presented sufficient evidence to support a finding of guilt so as to permit a subsequent retrial without violating double jeopardy principles, we apply the familiar standard: “whether, after viewing the evidence in the tight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Cramer v. Commonwealth, supra at 109-110, quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Discussion. Taking the evidence in the tight most favorable to the Commonwealth, we assume that the defendant fraudulently induced the complainant to have intercourse. However, as noted above, the rule of Commonwealth v. Goldenberg, 338 Mass. 377, 384, cert. denied, 359 U.S. 1001 (1959), is that intercourse where consent is achieved by fraud does not constitute rape. That rule compels the conclusion that there was no evidence of rape in this case, and we decline to overrule the Goldenberg decision.
a. The rule of the Goldenberg decision. For all purposes relevant to this case, the crime of rape is defined by statute as nonconsensual intercourse achieved “by force.”6
We assume that, when it enacts legislation, the Legislature is not only aware of existing statutes, but is also aware of the prior state of the law as explicated by the decisions of this court. Commonwealth v. Callahan, 440 Mass. 436, 440-441 (2003). Thus, we find it significant that the Legislature has not seen fit to overrule the Goldenberg decision in forty-eight years, during which the rape statute was amended three times,8 scholarship and attitudes regarding rape changed considerably, see Commonwealth v. Keevan, 400 Mass. 557, 571 (1987) (Abrams, J., concurring), and the Goldenberg decision received criticism
b. Whether the Goldenberg decision is distinguishable. Relying principally on United States v. Booker, 25 M.J. 114, 116-117 (C.M.A. 1987), the Commonwealth attempts to distinguish the Goldenberg decision on the ground that it involved “fraud in the inducement” while the present case is one of “fraud in the factum.” We find this argument unpersuasive. Assuming that there is a distinction that is meaningful in the context of sexual intercourse, we examine the concepts involved. The term “fraud in the factum” typically refers to “the rare case when there has been fraud as to the essential nature of [a legal] instrument or an essential element of it.” Frederico v. Brockton Credit Union, 39 Mass. App. Ct. 57, 63 (1995). “Fraud in the inducement,” by contrast, occurs “when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved,” Black’s Law Dictionary 686 (8th ed. 2004), but there is no fraud as to the essential nature of the transaction. Frederico v. Brockton Credit Union, supra. In the context of rape, by analogy, “fraud in the factum” must mean that the victim is defrauded as to the nature of the act performed, rather than the reason for doing it. Compare Boro v. Superior Court, 163 Cal. App. 3d 1224, 1228 (1985) (fraud in factum where victim consents to doctor’s penetration
Conclusion. Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute.10 Accordingly, the defendant’s motion for a required finding of not guilty should have been granted. This case is remanded to the county court for entry of an appropriate order by the single justice barring a subsequent retrial on double jeopardy grounds.
So ordered.
Notes
Under the statute, rape may also be proved by evidence of intercourse compelled by “threat of bodily injury.”
We recognized that any prior statements regarding this question, such as in Commonwealth v. Roosnell, 143 Mass. 32, 40 (1886), were dicta. See Commonwealth v. Goldenberg, 338 Mass. 377, 383, cert. denied, 359 U.S. 1001 (1959).
Although the Goldenberg decision has been questioned, it has never been overruled. In dictum in a footnote in Commonwealth v. Helfant, 398 Mass. 214, 221 n.5 (1986), the court, per Justice Abrams, raised but did not decide the issue whether the Goldenberg opinion was still good law. Justice Abrams again questioned Goldenberg’s vitality in a concurrence in Commonwealth v. Keevan, 400 Mass. 557, 571 (1987) (Abrams, J., concurring). However, in Commonwealth v. Caracciola, supra at 652-653, a later decision, Justice Abrams’s majority opinion carefully distinguishes the Goldenberg decision without any intimation of overruling it.
As discussed infra, our review in this case is analogous to review of a denial of a motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Alternatively, the Commonwealth pursued the theory that because the complainant was not “fully awake” at the time of the intercourse, the act constituted rape under Commonwealth v. Burke, 105 Mass. 376, 380-381 (1870). However, read in the light most favorable to the Commonwealth, the complainant’s testimony was that she consciously consented to intercourse under the mistaken belief that it was with her boy friend. Nowhere does the complainant suggest that she was not sufficiently conscious to consent. To the contrary, she testified that she was aware of the defendant in bed with her and had intelligible and appropriate conversation with him prior to the intercourse.
There is no allegation of any “threat of bodily injury” in this case.
The Goldenberg rule is not only required by our own law, it is also consistent with the law in a majority of other jurisdictions. In England, a long line of cases, beginning with Rex v. Jackson, 168 Eng. Rep. 911 (Cr. Cas. Res. 1822), held that sexual intercourse by fraud, particularly by “personaling” the complainant’s husband, was not rape. See The Queen v. Barrow, 1 L.R.-C.C.R. 156 (Cr. Cas. Res. 1868); Regina v. Clarke, 169 Eng. Rep. 779 (Cr. Cas. Res. 1854); Regina v. Williams, 173 Eng. Rep. 497 (N.P. 1838); Regina v. Saunders, 173 Eng. Rep. 488 (N.P. 1838). But see Queen v. Dee, 14 L.R. Ir. 468 (1884). Similarly, in this country, most jurisdictions that have considered the issue have held that intercourse by fraud does not constitute rape. See, e.g., Lewis v. State, 30 Ala. 54 (1857); Don Moran v. People, 25 Mich. 356 (1872); People v. Hough, 159 Misc. 2d 997 (N.Y. Dist. Ct. 1994); State v. Brooks, 76 N.C. 1 (1877); Commonwealth v. Duchnicz, 42 Pa. C.C. 651 (1914), rev’d on other grounds, 59 Pa. Super. 527 (1915); Wyatt v. State, 32 Tenn. 394 (1852); Commonwealth v. Culbreath, 36 Va. Cir. 188 (1995). But see United States v. Hughes, 48 M.J. 214 (C.A.A.F. 1998); Pinson v. State, 518 So. 2d 1220 (Miss. 1988); State v. Atkins, 292 S.W. 422 (Mo. 1926).
See St. 1974, c. 474, § 1; St. 1980, c. 459, § 6; St. 1998, c. 180, § 59.
See, e.g.,
The Commonwealth has waived any argument that the defendant could have been convicted of some lesser offense, such as assault and battery.