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.

HAVERHILL MAN IS CONVICTED OF RAPE IN DOMESTIC VIOLENCE INCIDENT

I wish I could say “you don’t see this everyday…” but that would probably not be true.

We have always had people engaging in sexual crimes. However, the norms of what used to be acceptable (kind of) have changed. The bottom line is that one cannot force another person to have sex with them.

It does not matter if it is a husband and wife, boyfriend and girlfriend or even prostitute and client.

And even if the soon-to-be complainant is not inclined to make a criminal case out of it, she might not have a choice. Once it is reported, it is the state or federal government’s case and they are going to run with it. Further, the crime of rape is not merely a sex crime anymore if it happens among those in a romantic or family relationship…it is also considered domestic violence.

Take the case of 30-year-old Jeffrey G. Lewis (hereinafter, the “defendant”) for example. His girlfriend appeared one day in court seeking a Massachusetts restraining order. Sitting down with a domestic violence advocate who helped her fill out the paperwork requesting the order, she was asked whether her boyfriend, the Defendant, had ever forced her to have sex.

She answered in the affirmative.

The restraining order suddenly becoming the least of the Defendant’s problems, criminal charges of rape were brought in Lawrence Superior Court.

That trial, which took two years to arrive, ended this week.

The Defendant was convicted.

Boston.com’s article, “He was her boyfriend, and her rapist”, gives more of the details of the case as well as discussion of the fact that many people do not think of rape when they think of domestic violence cases. Further, some people do not appear clear about the fact that nobody ever loses the right to say “No”. Never.

To the contrary, as we have often discussed, these days the law has changed to protect those who do not even say “No”. If the complainant is too shy or afraid to speak out, or is drunk or otherwise incapacitated, they do not have the ability to consent to sex. In such cases, regardless of what is said in the moment…the answer, legally speaking, is “No”.

The Defendant did not seem to be clear on that point of law. According to a Haverhill police report, in July, 2013, he came home in a drunken rage. He pushed the girlfriend around, called her a slut and forced her to have sex with him.

His reasoning?

“This is mine, I’ll do what I want with it,” he told her at one point, according to the report.

In fact, he was the one who called the police to report her assaultive behavior when she was fighting back. He told her that he was going to get her arrested.

That did not work out as planned. The police arrested him and she went to the Haverhill District Court for a restraining order.

Onlyat court “did it occur to her that what had happened to her was rape,” said Carrie Kimball Monahan, a spokeswoman for the Essex County District Attorney’s office.

    Attorney Sam’s Take On The Other Side Of The Criminal Justice Sexual Coin

Whether one agrees with the change in approach to these matters…there is little question of the fact that the pressuring of someone in any way to have sex with you is illegal.

That’s the law and this blog is about the law as it is…not what one would like it to be.

“Sam, it seems pretty cut and dry that if someone claims you pressured them into sex, even if they admit they never communicated “no” that a prosecution, and maybe a conviction, is certain.”

Well, that is basically true..at least in terms of a prosecution. Generally, if a complainant says it happened…it happened. That’s it.

But that is not all that different from other crimes. If the complainant reports it and, particularly, if the police believe it, then it is generally as good as sacred text.

“And a conviction?”

Well, that’s a little different. That takes a jury to decide in cases which go all the way to a jury trial.

That’s when the presumption of innocence seems to matter more than the assumption of guilt.

Usually.

Do you need me to remind you to get an experienced criminal defense attorney if charged again?

No?

Then I will simply wish you a great, safe and law-abiding weekend!

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