Massachusetts Supreme Judicial Court Rules Rape Defendant Was Entitled to “Withdrawal of Consent” Jury Instruction

Earlier this week, the Massachusetts Supreme Judicial Court affirmed a Salem man’s rape conviction despite ruling the trial judge had improperly instructed the jury on the defendant’s consent defense.  The name of the case is Commonwealth v. Sherman. 

During the early morning hours of October 14, 2014, the defendant and the victim met at a bar.  They began talking and stayed at the bar until it closed at 1:00 in the morning.  The defendant asked the victim if she wanted to hang out and she said yes, but she told him she was gay.  They went their separate ways but the defendant texted the victim a short time later and invited her to his apartment.  The victim again told the defendant she was gay and would not be having sex with him, but she agreed to visit him and arrived at his apartment at a little before 2:00 a.m.  After drinking beer in the kitchen, the victim accompanied the defendant to his bedroom where he tried to kiss her.  The victim again reminded the defendant she was gay and he apologized.  However, in short order, the defendant pinned the victim to the bed and vaginally raped her.  According to the victim, she repeatedly screamed at the defendant to stop, but he continued the sexual assault.  When it was over, the victim quickly got dressed and left.  She called a friend and hysterically reported that she had just been raped, and then drove to her parents’ home.  Her parents took her to the hospital where a rape kit was performed.  The nurse who conducted the examination testified that the victim appeared upset and tearful but did not have apparent trauma to her body (although about a week later, the victim went to the police station and showed officers bruises on her inner arm and inner thigh that she attributed to the rape).  When confronted by officers on the night of the rape, the defendant acknowledged having sex with the victim but asserted it was consensual.

The defendant went to trial in Essex Superior Court on multiple counts of rape.  During its deliberations, the jury asked whether consensual sex can turn into rape if the victim changed her mind (regarding consent) during the sex act.  The judge answered affirmatively, but failed to tell the jury that the victim must reasonably communicate to the defendant her withdrawal of consent when she no longer wants to have sex.  The jury convicted the defendant of two counts of rape (and acquitted him of a third count of rape) and he was sentenced to 6-8 year in prison followed by three years of probation.  The defendant appealed and despite concluding the trial judge had committed error in his instructions to the jury, the Supreme Judicial Court affirmed the conviction.

The SJC wrote that it is easier to evaluate whether force (or threat of force) – which is an element of rape – compelled a victim to submit to a defendant’s initial penetration.  It’s more difficult to evaluate whether the continued penetration was the result of force or threat of force.  Therefore, where the initial penetration was consensual, the Commonwealth must prove the victim reasonably communicated her desire to discontinue the sex act to the defendant in order to prove rape.  If a reasonable person in the defendant’s position would have realized the victim had withdrawn consent, the defendant is guilty of rape.

Nevertheless, in this case, the SJC ruled the defendant had been properly convicted despite the trial judge’s erroneous jury instructions.  The Court concluded the jury would have reached the same verdict even if it had been properly instructed, and the rape conviction will therefore stand.