Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

MASSACHUSETTS SEXUAL ASSAULT AND THE DEFENSE OF CONSENT

In my last posting, we discussed Emmanuel Bile and his conviction in the rape trial that had just ended.

After the sentencing hearing, Mr. Bile was sentenced to serve eight to ten years in Massachusetts State Prison.

The complainant addressed the court at the hearing. She told the judge that “That night nearly broke me.” She spoke of an “indescribable emptiness and sadness” that consumed her life after the rape, and said she felt that Bile had treated her as “less than human.”

The prosecutor recommended a ten to twelve year sentence in state prison term followed by five years of probation. She argued ,”These are some of the worst acts we can imagine in our society.” She also referred to what she called Bile’s “lack of remorse”, the victim’s vulnerability during the incident, and the lasting impact on the woman.

“It’s absolutely clear her entire life has changed because of this,” the prosecutor said of the woman.

Defense counsel recommended a prison sentence of four-and-a-half to eight-and-a-half years followed by probation, arguing that Bile — eighteen at the time of the incident — was young and naive.

The judge, in imposing the sentence, called the incident “every parent’s nightmare” and an “alcohol-fueled, sex-crazed assault of horrific proportions…It is difficult to imagine a more vulnerable victim,”

The maximum sentence for aggravated rape in Massachusetts is life in prison. Bile’s prison term will be followed by five years of probation.

Attorney Sam’s Take On Sex Without Consent

We have been talking, on the last couple of postings, about the issue of consent. We have already discussed the obvious…children cannot consent as a matter of law. As a result, the defense of consent is not available in those instances.

Other cases of rape or indecent assault and battery are equally clear. There are incidents wherein there is no question of consent…there simply wasn’t any. These can range from the street-level attack all the way to date-rape where, from the start, the future complainant makes it quite clear that he/she is not interested.

By the way, for those of you stuck in years which precede the later 1900’s…those who subscribe to the adage that “ ‘No’ is merely a ‘Yes’ weakly disguised in some sort of ‘come hither’ kind of game”…that rule of thumb no longer holds (if it ever did).

But today’s Massachusetts criminal justice system goes further than this.

For example, the inability to consent has been extended far beyond questions of age. It now can extend to those who are drunk or drugged enough to not be able to consent.

“But Sam, I thought that ‘voluntary intoxication’ was not a defense to such crimes.”

That is correct. However, being a complainant is not a crime. It is not the same measuring stick. In short, voluntary intoxication can mean inability to consent.

Of course, there are similar issues as to who encouraged the intoxication. For example, if it was the future defendant who urged or induced the drinking or drugging, then it is seen as that defendant’s scheme or plan.

You might think that such is the extent to which the criminal justice system has reached in these cases.

Not so much.

The question of consent has now also been understood as a question of fact…that fact being whether or not the complainant actually did not want the sex…regardless of what was said or shown.

In other words, what if there is a date and Mr. X decides to make some moves. Ms. Y, an adult who is not intoxicated, is shy and easily frightened. She not only does not say “no”, but she just does NOTHING. She does not really respond…she certainly does not physically resist Mr. X…and so, she suffers in silence while Mr. X does his thing.

The silence is broken when Mr. X leaves. That’s when Ms. Y calls the police to report the attack.

“Can that really be prosecutable? I mean, how would Mr. X KNOW what was going on in Ms. Y’s mind?”

Good second question, but the first one’s answer is “Yes”. Mr. X will now be Defendant X.

There are policy arguments whether this status of the law is good or bad…but it is the current status of the law.

So, be careful when you “make moves”. You might be moving into the criminal justice system. The burden is on you to make sure there is consent.

Next: Allegations Of Sex Crimes, The Marathon Bomber And This Question Of Death

To review the article upon which this blog is based, please go to
http://www.boston.com/news/local/massachusetts/2015/03/30/first-defendants-convicted-umass-dorm-rape-case/5IsL1VCjcXvqpSeaVkNMUJ/story.html and http://www.masslive.com/news/index.ssf/2015/04/emmanuel_bile_sentenced_in_uma.html

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