News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Sex, Violence, and Consent in Massachusetts

In many contexts, rules and codes of conduct have moved from evaluating the lawfulness or permissibility of sex based upon the presence or absence of force to instead evaluating whether the sex happened with or without consent. This is particularly true on college campuses, almost all of which have a definition of consent—usually affirmative or effective consent—that sex must meet in order to be allowed under campus policies. Many people—and particularly college-age students who have been trained on affirmative consent policies—think almost exclusively in terms of consent when considering whether sex is lawful or permissible.

The criminal law in Massachusetts is more complex. Lack of consent is an element of some crimes, such as indecent assault and battery. As to the crime of rape, the prosecution has to prove both that the sex was without consent and that it was “with force,” though if the victim is incapacitated the “force” required is only that necessary to effect penetration. But some sexual activity may also create a risk of prosecution under other statutes, which do not require the prosecution to prove a lack of consent. Specifically, because consent is not a defense to the crime of assault and battery with a dangerous weapon—and may not be a defense to the crime of simple assault and battery, with no weapon involved—people engaging in any sexual activity that carries a risk of physical harm to their partner should be very cautious about the attendant risk of criminal liability.

In the 1980 case Commonwealth v. Appleby, the defendant was convicted of assault and battery with a dangerous weapon. The alleged victim in the case was his sexual partner; as the Massachusetts Supreme Judicial Court put it, the two “were engaged in a homosexual, sadomasochistic relationship for over two years, during most of which they lived together.” The defendant “frequently beat” his partner, and argued in his trial that the partner had consented to the beatings, which the defendant intended for his partner’s “sexual gratification.” (The alleged victim instead testified at trial that “his entire relationship” with the defendant, “including the homosexual acts, was forced upon him.”) The jury convicted the defendant on an indictment alleging that he had hit the alleged victim with a riding crop. The defendant did not claim that the alleged victim had given his explicit consent to that specific action; however, the SJC found, even if it were to hold that a) the victim consented to the relationship generally, and b) the defendant subjectively believed on the night in question that the victim would consent to the hitting on the basis of his past behavior, the defendant’s actions were still criminal—not because there was not consent, but because consent was not a defense.

The SJC held that the state “can regulate, by the law of assault and battery, violent behavior which occurs in private, consensual sexual relationships.” It found, specifically, that: “Any right to sexual privacy that citizens enjoy . . . would be outweighed . . . by the State’s interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations.” While expressing doubt that the defendant’s actions were in fact consensual, it nonetheless held that the victim’s “consent to assault and battery upon him by [the defendant] cannot absolve [the defendant] of the crime charged.”

Constitutional law has evolved considerably since 1980 when it comes to the right to sexual privacy. After the Supreme Court held in Lawrence v. Texas that states cannot criminalize consensual same-sex sexual intercourse, another defendant asked the SJC to revisit its holding in Appleby. In the 2012 case Commonwealth v. Carey, the defendant, convicted of attempted murder, armed home invasion, assault and battery by means of a dangerous weapon, and assault and battery, argued at trial that he had strangled the victim with a ligature as part of consensual sexual activity. On appeal, he argued that the trial judge should have instructed the jury that consent was a defense to the crimes of armed home invasion and assault and battery with a dangerous weapon. The facts of Carey, as recounted by the SJC, are disturbing and even frightening, and it’s possible that its outcome is partly a result of the axiom that bad facts make bad law. In any event, the SJC reaffirmed that consent was not a defense to a charge of either armed home invasion or assault and battery with a dangerous weapon, and upheld the convictions.

Both Appleby and Carey involved assault and battery with a dangerous weapon, not simple assault and battery. The law of battery is more complicated as to consent. A battery is a harmful or offensive touching. If a touching is a “harmful battery,” that involves “such violence that bodily harm is likely to result,” then (according to the SJC in Commonwealth v. Burke in 1983) “consent is immaterial,” just as it is (according to Appleby) if a weapon is used. But an “offensive touching is only so because of lack of consent.” Therefore, consent is an element that the prosecution must prove, “when the alleged battery is not of the physically harmful type.” In short, consensual touching cannot be illegal because it is “offensive,” but touching may be illegal—even if completely consensual—if it is “harmful.”

The bottom line here is that the criminal law of Massachusetts does not treat consent as a single bright-line test for the legality of all sexual behavior. Although the lack of consent is an element of explicitly sexual crimes like rape and indecent assault and battery, sexual practices that include behavior that could be physically harmful can be criminal in Massachusetts, even where they are consensual.


If you have been arrested or are facing criminal charges,contactour criminal defense attorneys at (617) 742-6020.

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