Rape & Consent

(FEB. 2019)
[Rape, Consent]


A Superior Court jury convicted the defendant of penile-vaginal and digital-vaginal rape, rejecting the defendant’s testimony that all sexual intercourse between him and the victim had been consensual.

On appeal, the defendant argued that two reversible errors were made in his conviction:

  • Where the deliberating jury asked the judge whether initially consensual sexual intercourse could become rape if the victim withdrew her consent after penetration, the judge erred by failing to instruct the jury that that a defendant may not be found guilty of rape under such circumstances unless the penetration continued after the victim communicated the withdrawal of consent to the defendant
  • Where there was no expert testimony regarding the effect of cocaine on perception and memory, the judge erred in admitting evidence of cocaine use for the purpose of allowing the jury to assess the defendant’s ability to perceive and recall events

The Massachusetts Supreme Judicial Court ruled that the judge erred in failing to provide the jury with an instruction regarding the withdrawal of consent and in admitting cocaine evidence for the purpose of assessing the defendant’s memory, but that, in the circumstances of this case, neither error requires reversal of the defendant’s convictions.

Background: Victim’s Account (Accepted)

The primary contested issue at trial was whether the victim had consented to sexual intercourse with the defendant. The victim and the defendant offered sharply differing accounts of what happened in the early morning of October 14, 2014.

The victim testified that on the night of October 13, 2014 she went to a pub with a female friend of hers and drank a single beer and then went with the friend to a second pub. The two arrived some time between midnight and 12:15 AM at the second pub. Upon arriving, the victim recognized one of her coworkers and the bartender, and began speaking with them. The defendant, whom the victim did not know, ended up joining the conversation. The victim and the defendant remained at the pub until approximately 1 AM, when the pub closed. The victim drank one beer and one shot at the second pub.

The defendant and the victim and others continued to talk outside the pub after closing. The defendant then asked the victim if she wanted to “hang out”. The victim agreed but informed him that since she was gay it would only be “hanging out”. The defendant said that was fine and the two exchanged telephone numbers before parting.

The victim and her friend then went to a restaurant where she received a text message from the defendant asking to see her and also asking if he wanted her to get condoms. She replied that she would be willing to see him but reminded him that she was gay. The victim then drove her friend home and continued alone to the defendant’s apartment, arriving shortly before 2 AM.

While in the apartment together the victim and the defendant drank beer in the kitchen while discussing their shared interest in music. The defendant then told the victim that he wanted to show her a record in his bedroom. Here the defendant attempted to kiss the victim on the cheek. The victim responded by putting her hand out and telling the defendant that she was gay. The victim apologized multiple times and then attempted to kiss her again. Before she could tell him to stop, the defendant got on top of the victim and put his knees on her thighs and put his hands on her shoulders. The victim “froze” in terror.

The defendant then pulled down the victim’s pants and pulled her shirt up to her neck. The victim struggled to free herself and shouted for the defendant to stop. The defendant then vaginally raped her with his penis, an experience she described as painful. Afterwards, the defendant put his penis in the victim’s mouth. He inserted his fingers into her vagina as well. He then vaginally raped the victim with his penis for a second time. Eventually the defendant got off the victim.

The victim dressed rapidly, gathered her belongings and quickly left the apartment. The defendant attempted to kiss her again but she pushed him away and fled the apartment in her vehicle.

Severely distraught by the incident, the victim called a friend from her vehicle. She drove to her parents’ home and they took her to a hospital where a nurse conducted an evidence collection examination. The nurse testified at trial that she had been assaulted but that the victim suffered no trauma to her body from what happened. At 4:45 AM, the victim met with Salem police Detective Eric Connolly at the hospital.

Officers arrived at approximately 6 AM at the apartment of the defendant and he let them enter. The defendant claimed that he had sexual intercourse with a woman the night before but he could not remember her name. The defendant was subsequently arrested and brought to the Salem police department for booking.

That same day the officers obtained a warrant to search the defendant’s apartment. During the searching of the apartment they discovered evidence of cocaine use. In the execution of a separate warrant for the defendant’s cell phone, they discovered text messages between the defendant and the victim.

On October 20 the victim went to the Salem police department to have photographs taken of bruises that appeared on her body after the assault.

Background: Defendant’s Account (Rejected)

The defendant testified that he had been at the pub for several hours when the victim, whom he had not met before, arrived. The defendant claimed that in his conversations with the victim she suggested to him that she was bisexual and not gay.

After last call, the defendant asked the victim for her telephone number. The victim provided it. The defendant texted her soon after to ask whether she wanted to meet later that night. The defendant claimed that the victim’s statement that “she liked girls” meant that he should not expect a commitment from the woman.

At the apartment, the defendant and the victim were speaking about music in the kitchen when the defendant kissed the victim on the lips. The victim reciprocated and the two kissed for several minutes. The two eventually moved to the bedroom where they resumed kissing and also began touching each other’s genitals, although the defendant testified that he never inserted his finger into the victim’s vagina. The victim then consensually proceeded to give oral sex to the defendant. The experience ended with consensual vaginal intercourse.

Afterwards the victim and the defendant spoke for approximately five to ten minutes about how strange it was that they never met despite sharing a number of mutual friends. The victim did not seem upset. The two kissed each other goodbye outside the defendant’s vehicle and the defendant later texted her to say he hoped she got home safely.

The defendant told the police that he not raped the victim. He claimed to have had only three or four beers at the pub that evening and approximately one-half of one beer at his apartment. He also testified that he had not ingested cocaine or any other drug that evening.

Superior Court Trial

During the trial the judge instructed the jury regarding the law governing the three indictments of rape: digital-vaginal rape, penile-vaginal rape, and penile-oral rape. In order to prove a defendant guilty of rape beyond a reasonable doubt the Commonwealth must prove:

  • That the defendant engaged in sexual intercourse with the alleged victim
  • That the sexual intercourse was accomplished by compelling the victim to submit by force or threat of bodily injury

During their deliberations, the jury sent a written question to the judge asking for clarification on the issue of the “time of penetration”. The jury asked the judge to clarify if it was rape if the sexual intercourse started consensual and then the victim changed her mind. The judge responded by answering that legally the answer was yes. He added that lawful sexual intercourse can become unlawful sexual intercourse but that the Commonwealth still needed to prove both portions of the second element.

Neither party objected to this instruction. Later that day on which the instruction was clarified, the jury found the defendant guilty on the indictments charging digital-vaginal rape and penile-vaginal rape, and not guilty on the indictment charging penile-oral rape.

Issues: Withdrawal of Consent

The defendant claimed that it was a 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.

The Supreme Judicial Court determined that the first element of the offense of rape is undisputed as both sides agreed that intercourse took place.

The Court then acknowledged that the jury question in this case required the Court for the first time to consider whether an additional element of proof—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 Court first established that consensual sexual intercourse between adults is not only lawful but a private act of intimacy so important that it is constitutionally protected as a liberty interest. The Court also affirmed that consensual sexual intercourse can become unlawful where the victim withdraws consent after the initial act of penetration has occurred.

The Commonwealth agreed with the defendant that a victim must communicate his or her withdrawal of consent, but argued that an instruction on the matter was unnecessary because a jury would always understand that continued penetration that is compelled by force or threat of force could only be so compelled after the communicated withdrawal of consent.

The Court assessed that the problem with the Commonwealth’s argument was that it was far easier to evaluate whether force or the threat of force compelled a victim to submit to a defendant’s initial penetration than it was to evaluate whether force or the threat of force compelled a victim to submit to a defendant’s continued penetration.

The Court determined that the communication of withdrawn consent certainly did not need to be made through the use of physical force. It also did not need to be made through the use of particular words, or through words at all. Physical gestures, such as trying to push the defendant away or attempting to move in a way that would require the defendant to end the penetration could suffice provided that the gestures reasonably communicated the withdrawal of consent to a reasonable person in the defendant’s circumstances. The Court referred to this requirement as that of “reasonable communication”.

However the Court noted that it requires no such communication of non-consent in a case where the victim alleges that the initial penetration was without consent. In such cases, the requirement that the sexual intercourse be compelled by force or the threat of force would typically suffice to protect a defendant from being found guilty of rape based on a reasonable mistake of fact. The force or threat of force required for a rape conviction is only that the alleged force or alleged threat was necessary to compel continued intercourse after the withdrawal of consent.

The Court also noted that although the burden is on the Commonwealth to prove lack of consent, the elements necessary for rape do not require that the defendant intended the intercourse to be without consent.

The Court continued arguing that in the absence of a jury question, the defendant’s testimony that the victim consented to sexual intercourse will not suffice alone to warrant an instruction on the withdrawal of consent after penetration.

On the issue of jury instructions, the Court determined that in the absence of a jury question, the instruction on rape will be warranted only when there is evidence that the victim initially consented to the sexual intercourse at issue, and then withdrew his or her consent during the course of it.

The Court then addressed whether the absence created a substantial risk of miscarriage of justice. A new trial under the substantial risk standard must be ordered if there is a serious doubt whether the result of the trial might have been different had an error not been made.

The Court judged that the jury’s verdicts would have been the same had the judge correctly instructed the jury on how to proceed if they found that the victim initially consented to sexual penetration and then withdrew her consent during intercourse. A victim’s consent to oral intercourse does not necessarily imply his or her consent to penile or digital intercourse. The Court was also persuaded that the lack of an instruction on the matter did not materially influence the guilty verdict.

Issues: Admission of Cocaine Evidence

Before trial the defendant file a motion in limine to preclude the admission of evidence concerning the cocaine found on his kitchen counter. The defendant argued that because there was no evidence that he was under the influence of cocaine on the morning of October 14, the cocaine evidence would be more prejudicial than probative.

The Superior Court judge informed counsel that he was admitting the evidence of the cocaine for the purpose of evaluating the credibility of the defendant, who during direct examination had denied using drugs that evening, and during cross-examination had denied recognizing the white substance found on his kitchen counter. The judge also instructed the jury that evidence concerning cocaine could be used only for two purposes: to determine whether drug use affected a witness’s ability to perceive and recall events, and to assess the believability of testifying witnesses.

The defendant further argued, and the Commonwealth conceded, that it was an error for the judge to allow evidence of drug use 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.

Although the defendant did not object to the judge’s limiting instruction and objected to the admission of the cocaine evidence only on the ground that it was more prejudicial than probative because there was insufficient evidence of drug use, the Court decided to determine whether the error created a substantial risk of miscarriage of justice.

It determined that it did not. It reasoned that there was no evidence that drugs played any role in the events of October 14, and neither attorney mentioned the cocaine in its closing argument. It added that it is unlikely that the drug evidence was given significant weight in the jury’s evaluation of the defendant’s testimony or culpability.


The Court AFFIRMED the defendant’s conviction, for the above reasons.



Source: Commonwealth v. Richard Sherman, Jr., SJC-12530

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