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.

PITTSFIELD JURY TRIAL OF UMASS AMHERST RAPE SUSPECTS ENDS IN CONVICTION

We have had a number of discussions about how schools (primarily colleges) grapple with the allegations of sex crimes. Some of the “new” and “improved” solutions have boarded on the ludicrous in my experienced opinion, but that is an issue for another day.

Today we visit one of the cases which led to the present state of affairs of said college self-analysis. It is a case from Northampton, Massachusetts. The University involved is the University of Massachusetts Amherst. It is a case which began in October, 2012. I blogged about it, which posting can be found here.

The case involved four defendants from Pittsfield. They are apparently being tried separately and the first trial just finished. None of them were students at the school, although one young man, Emmanuel Bile, 21, (hereinafter, the “Defendant”), knew the complainant.

He was the first to be brought to trial.

The trial ended this week.

The charges involved the alleged sexual assault of the complainant in her dorm room.

The defense in this trial was that of consent.

The complainant testified that she drank alcohol and smoked marijuana with the men, but that she did not consent to having sexual relations with them.

Prior to the partying, the complainant says that she had told the young men not to visit that night. However, another student let them into the dorm. The incident led the university to overhaul security procedures.

The men are being tried separately.

She also said that she was very drunk and having trouble standing when her two female friends left her with the four men. She said the men undressed her and raped her. She further testified that she was so drunk she could not speak or move.

The Defendant testified that he had been out of the complainant’s room much of the night and didn’t see her drinking. He said she was ‘‘tipsy’’ but awake and consenting when he had sex with her.

He also said that she never spoke at all…neither verbally consenting nor verbally protesting.

The Defendant was found guilty of two counts of aggravated rape and not guilty of rape by joint venture.

He was sentenced on Wednesday to eight to ten years in state prison.

His attorney says that they will appeal.

    Attorney Sam’s Take On The Defense Of Consent

There are a number of issues which this case brings us which will require a few postings.

The first one has to do with the defense of consent.

Obviously, if a person agrees to have sexual relations (of any kind) with a person, then, under the law, there is no rape or assault. If it is against someone’s consent, then it is rape or indecent assault and battery.

Sounds simple, right?

Well, in criminal justice reality…not so much.

What does “consent” mean?

You might figure that consent means the conscious choice to do something, in this case, have sex.

Our law, however, has determined that there are some people who are not capable of making such a conscious choice. Further, It has also determined that when we voluntarily get into certain situations. One example of someone who cannot consent is a child. In general, a person changes from the juvenile to an adult at the age of 18. The law fixes the age of being able to consent to sexual contact as Somewhat lower than that. However, at the age of 15, the law says that the person is a child without the ability to consent to sexual contact. In such cases, The defense of consent is not available.

“what if you didn’t know that the person was underage, Sam?”

It doesn’t matter. The law says you should have known.

Interestingly, if you are having consensual sex with someone who is 17, for example, don’t take any pictures or video tapes…the age limit there is higher…age 18.

“But the complainant in this case was not under-age, right?”

Yes. But the jury apparently found that she had not consented.

But there is something you should know…

And my next blog will have it.

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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