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.

WHAT YOU MUST MAKE SURE YOUR TEEN KNOWS ABOUT MASSACHUSETTS CONSENT AND SEXUAL ASSAULT Part Two.

I know that I had said that my very next blog was going to be Part Two of our discussion on sexual crimes.  Apparently, an interloper posted a non-Attorney Sam’s Take blog in between.  However, as promised, it is a new day and we now continue our discussion.

At 18 years of age, James Murphy, a freshman football player at Curry College learned some of the criminal justice pitfalls one can encounter when accused of the sexual assault of another student.

The allegations came this past October. Mr. Murphy was held on bail after he was arrested. He was arraigned on three counts of indecent assault and battery on a person 14 or older and one count each of accosting or annoying someone of the opposite sex and possession of amphetamines.

Naturally, Mr. Murphy is presumed innocent, even while held in custody, and the allegations are now part of his criminal record.

The Patriot Ledger reported that school officials were notified of a “report of sexual misconduct” and began disciplinary proceedings against the student, who could be expelled, suspended or barred from living on campus.

The arrest came as Massachusetts colleges continue to see an increase in reports of sexual assaults, including several cases on the South Shore. A Milton man was arrested and charged with raping a student at Bridgewater State University; a former Stonehill College student filed a federal complaint against the school, accusing it of responding inadequately when she had reported that she had been raped by a student athlete in a private home in Easton.

Among all Massachusetts colleges and universities with residential facilities, the number of reported sexual offenses increased from 129 in 2007 to 232 in 2012 and 320 in in 2013, according to the U.S. Department of Education. In 2014, the year the department began classifying sexual offenses differently, the schools reported 305 allegations of rape and 126 allegation of unwanted fondling.

At Curry, six cases of unwanted fondling and one case of rape had been reported in 2014. In 2013, before the change in categorization, there were five sexual offenses reported on the campus.

 

Attorney Sam’s Take On The New Ambiguities Of Consent

Yesterday, we left off after I set in motion the saga of Big Bart and Alluring Asia, two fictional characters. In this scenario, Asia had seemed to be a willing participant in a sexual encounter with Bart…although, to be sure, they both had been drinking alcohol.

Now, I do not know the specifics of the matter involving Mr. Murphy above and, as mentioned, the case of Bart and Asia does not really exist.  Further, there is no doubt that sexual assaults do happen. However, I would rush to point out that sometimes they do not happen and allegations are untrue.

There is also a third possibility when seems to have changed over recent years. It makes the facts a bit more foggy…more ambiguous.

In my scenario, Asia’s friends embarrassed her the next day, laughing about how drunk she had been. Consequently, she felt manipulated by Bart.

Manipulation, particularly when accompanied by alcohol or drugs, tend to equal a lack of consent under the law.

“Even when both parties are adults?”

Yes, it has nothing to do with age. Under the law, being under the influence of…whatever…even voluntarily, dissolves one’s ability to consent to sex.

One might wonder how an adult can consent to driving while drunk enough to be criminally responsible and yet cannot consent to having sex, but that is for greater legal minds than mine.

“But, Sam, I thought both Bart was drinking too!”

Oh, yes. He was. As drunk as her.

“So how could he have intentionally manipulated her?”

Again, for greater minds than mine.

All I can tell you is that I have handled a great many of these cases. These days, like domestic violence cases, they are usually handled in a one-sided manner. The complainant is the one who complains to authorities first (and is usually female). The soon-to-be-defendant is the other one (and is usually male).

The safest rule of thumb to assume that the addition of any alcohol, drugs or sickness to a romantic interlude is to be presumed severely corrosive to the ability to consent to sex.

And even then you’d better watch out for any motivation for a false allegation while completely sober.

Not that you need to be paranoid or anything…!

 

 

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