Commonwealth v.
Sherry: The
victim and Ds were all employed at the same hospital. She agreed to
go one of the Ds home in Rockport. On her account, she was invited
to look at a bureau in the bedroom and all three men forced her to
have sex with them in sequence. Ds wanted the jury to be instructed
about mistake of fact. Unless the jury found beyond a reasonable
doubt that they had ACTUAL KNOWLEDGE of the victim’s lack of
consent, no rape. This would be confining the
mental state to the highest level in homicide.
The court held that there is not even a
negligence defense to mistake of fact. Thus
the law in MA is strict liability for rape! If she is not
consenting, it doesn’t matter that you knew, didn’t know etc. –
it is rape! MA, unlike Wisconsin
does not have a requirement for any sort of forcible compulsion –
non-consent is enough!
- Negligence Instruction that MA Rejects:
- It’s a defense to rape unless you find that a reasonable person would have thought that she did not consent. You cannot find that rape unless you find a reasonable person would be aware of her non-consent.
- Most states have a negligence standard. England had a recklessness standard. There are still states like MA that hold on to SL but they tend to be states that have a very narrow definition of rape in their statutes. So the broader rape is defined under your statute the more you allow a negligence standard.
- Recklessness Instruction that MA Rejects:
- You can’t be held to rape her unless you actually know there is a risk that she did not consent.
- Rational For Strict Liability Rape: Assuming everyone knew this rule, the incentive would be that if you are going in the business of having sex, you better find out if she wants or not! You must be extra careful in MA.
- Compare to Staples v. United States: If gun is a normal protected activity thus strict liability is a problem for gun owners, why wouldn’t it be a problem in sex? Sex is probably considered a normal protected activity as well.
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