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 IS NOT CLEAR CUT (Part Two of Two)

Yesterday, We began discussing some realities of Massachusetts sexual assault prosecution about which you may not be aware.

In this case, what you don’t know can ruin your life. I have seen it happen time and again.

Once the allegation is made, getting an experienced criminal defense attorney is your one best option to fix your life…but there will be damage nonetheless. So, it is worth taking the time to realize this reality now.

Better to not need my help.

    Attorney Sam’s Take The New Realities of Sexual Assault Prosecutions

We discussed the new understanding of what constitutes a “no”…particularly if you want to be safe in avoiding criminal prosecution. There are some instances in which even a “yes” is not good enough to overcome an assumption of “no”.

For example, lets say that Peter Partier is at a party where he meets Adorable Annie. Both of them have had a few drinks and they hit it off. Annie is clearly pretty loaded, but Peter is pretty buzzed too. He walks her to her apartment (or dorm room) and begins to make “the moves” on her. She responds affirmatively and they have sex.

In the morning, Annie seems a bit embarrassed, but still friendly and they agree they will get together again later in the week. Peter leaves, perhaps figuring he has a new “girlfriend”. He is wrong. He may have a new “victim”.

I have seen this scenario play out many times where Annie’s friends explain to her that, because she was drunk, she was raped. I have seen other rationales as well, such has having to explain to a boyfriend, or a simple remorseful feeling of “That’s not me!”

“Well, that’s ridiculous, Sam! She cannot simply claim that after the fact! “

No? Why not? Few rapes are reported before the fact.

“You know what I mean. She never indicated, or even thought, that she did not want to consent to sex”.

True. However, she may have been drunk. Under the law, if she were drunk, she could not, as a matter of law, have consented. Its like saying an infant can consent to sex.

“But Peter was buzzed too!”

Yes, but Peter is not claiming he was raped. Annie is. Remember something we have spoken about in the past many times. Often, the difference between who will be the “victim” and who will be the defendant is in who makes the complaint first.

Besides, there is an obvious presumption that the male is the aggressor.

Again, maybe Peter will win at trial. But what I am trying to do here is to avoid that harrowing adventure for him.

I mentioned that this could have taken place in a dormitory room. This brings us to the fact that many of these cases take place in schools. For a student to be facing such allegations, the prosecution, or even the allegation is never prosecuted by law enforcing, it is twice as devastating.

“Why is that?”

 

A few reasons. First of all, a student is obviously working toward a future of some kind. Should there be any reflection of an allegation of sexual assault on Peter’s record, whether it be through law enforcement or the school record, this will have a horrible effect on limiting his options down the road.

For the here and now, of course, there is enough to worry about. Should Annie, or even her friends, decide to complain to the school about the allegation Peter will have a new sort of problem.

I know that many folks have accused schools of not taking sexual assault seriously. First of all, that is not my experience, although I usually get involved when the investigation has already begun. Perhaps because of media pressure on the subject, I have found that the schools take them VERY seriously. Further, the procedures used by the schools offer much fewer protections to the accused than do those in a court of law.

No, the school is not going to send the accused to prison. But they may well expel or at least suspend him. Once that happens, the future plans are in great doubt because that act will not go away. It will be seen by every future potential higher level school and probably early employment.

Please remember that most school-aged types are not fully formed human beings. In other words, they are young, inexperienced in the world, their brain is not fully formed…but their libido is.

Sex and drugs and….I guess now…Hip Hop prevail in most students’ lives. They are therefore more at risk for taking the wrong road on the common sense highway.

This is not to say that every allegation of sexual assault is real or even founded on unfortunate facts as I have painted them above.

“That’s right! What if the ‘victim’ is really just lying?”

It’s a problem…because they will likely be believed and, in that case, you would be crazy not to retain the services of someone like me.

You, or your student, have to be very careful. And, if the latest news has not been enough to show you, any offensive touching can be a sexual assault if it is either done by the wrong part of you or the wrong part of her body part. A pat on the tush can be a sexual assault.

Just like a tap on the shoulder can be a simple battery.

On that happy note, have a great, safe and law-abiding weekend!

 

 

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