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 MAY NOT BE WHAT YOU THINK IT IS (Part One of Two)

As exemplified by the “Me Too” movement, stories of sexual harassment and sexual assault are rampant. The prevalence of the reports are staggering to most people.

One of the most recent spotlights on the subject was none other than Oprah Winfrey who commented on the movement, as CNN tells us, at the Golden Globe awards.

Oprah announced that she had been “inspired” by “all the women who have felt strong enough and empowered enough to speak up and share their personal stories.”

She further stated, “For too long, women have not been heard or believed if they dared to speak their truth to the power of those men, but their time is up…. I want all the girls watching here, now, to know that a new day is on the horizon! And when that new day finally dawns, it will be because of a lot of magnificent women, many of whom are right here in this room tonight, and some pretty phenomenal men, fighting hard to make sure that they become the leaders who take us to the time when nobody ever has to say ‘Me too’ again”.

It would seem that the type of stories Oprah is talking about are pretty obvious tales of sexual harassment and abuse.

In my experience, however, on both sides of these types of cases, the “rules” regarding sexual interaction are often not so clear.

That is primarily because they have been changing.

    Attorney Sam’s Take On Being Clear on Sexual Assault

When I was a prosecutor in the Sex Crimes and Special Victims Bureau in the Brooklyn DA’s Office, things seemed to be pretty clear and simple.

Most of the cases reported were women who were forced, by threat or violence, to perform sexual acts on someone. They would range from the on-the-street assault by a stranger, to a relationship gone sour. There would also be cases involving professionals like doctors and dentists abusing their standing to abuse a patient or even drug deals gone sour resulting in rape.

Now, having been a criminal defense attorney for more years than the mortal mind can remember, either the reality or my perspective has changed. Probably both.

The point is that we all know that “no” is supposed to mean know. When an aggressor disregards the “no”, there is no consent and so whatever happens is a sexual assault.

Many cases today, however, are not quite that simple. Further, the rules have been changed which confuses the situation even more.

For example, the adage that “no means no” is only part of the law now. We are basically in the position that the absence of an obvious and sober “yes” is equal to “no”.

“Well, Sam, what if I am making out with someone, they voice alittle reluctance to go further, and I go further and she goes along with it? No struggle, no ‘No’?”

Then you are playing with fire. At this point, the session should have at least paused, if not ended, when the reluctance was shown.

“What do you mean? She went along with it. The ‘reluctance’ was just part of the game.”

Well, that used to be the “game” perhaps. But that “game” is no longer safe to play. How do you know that she did not feel compelled to go further with you? Maybe she really did not want to but was afraid to stop.

“Well, that’s absurd. Further, they would have to prove that beyond a reasonable doubt, right?”

Sure. At trial.  Let me represent you.  We’ll probably win.  However, in the meantime, you life might be ruined.  The trial will come a year or so later.  After a year of your having the stress and expense of having to defend yourself, perhaps losing your job and family and maybe having bail conditions which strongly inhibit your life and career.

Yes, folks, it is that serious. But that is just one example. I am going to continue this topic on tomorrow’s blog posting. I am also going to address the reality of these cases on students at whatever level of school. I strongly suggest you check it out and be ready to present it to any students, or family of students, that you know.

Until then, enjoy the non-freezing temperatures outside!

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