In Commonwealth v. Sherman the SJC Draws A Line Separating Consensual Sex from Rape 

How does a court determine when consensual sex becomes rape? That is the question the Supreme Judicial Court just tackled in Commonwealth v. Sherman. The facts of the case are not relevant to the legal question at issue; it is enough to know that the defendant argued that he had entirely consensual sexual intercourse with the victim, while the victim claimed that the entire encounter was not consensual. Under Massachusetts law, to prove rape the Commonwealth must prove three things: (1) that there was sexual intercourse between the defendant and the victim; (2) that the defendant accomplished that intercourse by force or threat of force; and (3) that at the time of penetration the intercourse was against the will of the victim (i.e. without the victim’s consent).  

Although in Sherman the victim did not testify that she initially consented to the sex and then withdrew consent, the jury asked for clarification about the Commonwealth’s burden to show that at the time of penetration the victim did not consent. The jury asked whether that applied only to the start of penetration, or whether if the victim changed her mind during penetration the continued penetration could be rape. The court held that where there is evidence that the initial penetration was consensual, but that the victim then changed his or her mind, an element of rape is that the victim “reasonably communicate[d] to the defendant his or her withdrawal of consent.” 

In coming to this conclusion, the Court noted that usually a “mistake of fact” is not a defense to a charge of rape – since a defendant must have used or threatened force in order to be convicted, the Court has generally found it implausible that there could be any mistake as to consent. This means in most cases the Commonwealth does not have to prove that the defendant knew the victim was not consenting, and the defendant did not have to intend to have non-consensual intercourse. However, prior to Sherman, the Court had found that there was one circumstance where mistake of fact could be a defense. In cases involving a victim who could not consent to intercourse because he or she was incapacitated due to intoxication, the law does not require the Commonwealth to show that the defendant used any force beyond the force necessary to accomplish the intercourse. If a victim is incapacitated by alcohol, and the defendant penetrates that victim, that penetration meets the force element of the statute. Because that situation gives rise to a possibility that defendants could make reasonable mistakes about whether the victim was able to consent, a decade ago the Court held that in cases involving incapacitation because of intoxication, the “Commonwealth must prove that the defendant knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting to the sexual act.” 

In Sherman, the Commonwealth argued that in cases involving withdrawn consent a similar additional element of the crime is not needed because continued sex only becomes rape where the defendant uses force or threat of force after the consent is withdrawn to compel the victim to continue to have sexual intercourse. The Commonwealth argued that the requirement of force or threat of force effectively requires the jury to find that the victim conveyed or communicated a lack of consent. The Court disagreed, holding “where the initial penetration was consensual, the fairest and clearest way to draw the line separating consensual sexual intercourse from post–penetration rape is to require, as an element of the offense, that the victim reasonably communicate to the defendant his or her withdrawal of consent.” The Court held that – as in incapacitation cases – the only force needed to meet the force element of rape is the force necessary to compel the continued intercourse.  The Court made clear that – as with the added element applicable in incapacitation cases – the Commonwealth does not have to prove that the defendant knew the victim withdrew consent. It is enough to prove that the victim communicated the withdrawal of consent in a reasonable way that a reasonable person would understand. The Court specifically noted that the withdrawal of consent need not be verbal; physical gestures including trying to push the defendant or trying to move in a way that would end the penetration could suffice. 

While Sherman clarifies the law of rape as it applies to withdrawn consent cases, it raises questions about the withdrawal of consent in other sexual interactions that may lead to criminal charges. The crime of indecent assault and battery on a person age 14 or older also has as an element that the victim did not consent to the acts in question. Just last year, the SJC held that it might be appropriate to have a mistake of fact instruction in a case alleging indecent assault and battery, though it did not find it appropriate on the facts before it in that case. Unlike rape, indecent assault and battery does not have as an element the use of force.  To find someone guilty of indecent assault and battery the Commonwealth must prove: (1) that the defendant intentionally touched the alleged victim without legal justification or excuse; (2) that the touching was “indecent” (generally involving the touching of private parts); and (3) that the alleged victim did not consent to the touching.  Because indecent assault and battery requires no force at all, the Court’s logic that led it to require a reasonable communication of withdrawal of consent in Sherman would seem to require at least the same additional element in cases alleging indecent assault and battery where there is evidence that the initial touching was consensual.  

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