*Thank you to Professor Aliza Hochman Bloom for her professional comments in the early stages of this essay. Special thanks also to Amanda Seijo and Brynn Morse for their outstanding work as research assistants
The Massachusetts rape statute requires proof of force and lack of consent to convict a defendant of rape. Specifically, the statute reads in part: “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against [her] will, or compels such person to submit by threat of bodily injury, shall be punished . . .” (emphasis added).1Mass. Gen. Laws Ch. 265, § 22(b) (2020).
The common law has interpreted the statute over the last decades to include force (or threat of force, including constructive force), as well as lack of consent — both must be established.2Commonwealth v. Lopez, 433 Mass. 722, 727 (2001). The requirement of lack of consent is inferred from the statutory language “against [her] will.” This essay proposes that the statute be revised so that the crime of rape is committed when it occurs “without the victim’s consent” without the requirement of force.3For example, the statute could read, “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force or without her consent, shall be punished . . . .” Or the statute could read, simply, “Whoever has sexual intercourse or unnatural sexual intercourse with a person without her consent, shall be punished . . . .”. This change would make explicit an affirmative requirement for the defendant to overcome, i.e., once the prosecution meets its burden of proof that the victim did not consent, the defendant would need to establish that she did. This statutory change would be a more victim-based approach.
The rape statutes in several other states expressly detail that rape is perpetrated when a defendant commits sexual assault on a person without that person’s consent. For example, in Arizona, “A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual conduct with any person without consent of such person.4Ariz. Rev. Stat § 13-1406 (2008). (emphasis added). And in Louisiana, the rape statute reads as follows: “Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.5La. Stat. Ann. § 14:41 (2022). (emphasis added).6See also Montana, Mont. Code. Ann. § 45-5-503(1)(“A person who knowingly has sexual intercourse with another person without consent. . .”); Nebraska, Neb. Rev. Stat.. § 28-319(1) (“Any person who subjects another person to sexual penetration (a) without the consent of the victim. . .”); Texas, Tex. Govt. Code. Ann. § 22.011(a)(1)(A)((“A person commits [a sexual assault] offense if: the person intentionally or knowingly: causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent. . .”); Utah, Utah Code § 76-5-402(2)(a) (“An actor commits rape if the actor has sexual intercourse with another individual without the individual’s consent”); Vermont, Vt. Stat. Ann. tit. 13, § 3252(a)(1) (2021) (“No person shall engage in a sexual act with another person: without the consent of the other person”)(emphases supplied).
Revising the Massachusetts statute would have been significant in the recent appellate decision in Commonwealth v. Mayanja and might have obviated the need to vacate the rape judgments.7See generally Commonwealth v. Mayanja, No. 103 LEXIS (Mass. App. Ct. Aug. 10, 2023).
In Mayanja, an unpublished decision, the victim was raped by her Uber driver, and the Commonwealth argued constructive force, i.e., “that the victim feared she would be seriously injured if she tried to get out of a moving car.”8Id. at 5. Although the panel of the Appeals Court agreed that the plaintiff presented sufficient evidence of constructive force to the jury, the trial judge’s error in failing to define constructive force created a substantial risk of a miscarriage of justice, requiring the defendant’s two rape convictions to be vacated.9Id. at 2-5. If the rape statute had needed proof of force or lack of consent, or only lack of consent, the judgments could have been affirmed. Clearly, the jury believed that the victim had been raped, as their verdicts convicting the defendant illustrated. It was only because the jury did not have full and fair instruction on constructive force that the trial was deemed unfair. Without having to prove constructive force and only needing to establish that the victim did not consent — which the panel found had been done — the rape judgments would have been affirmed.
The revised statute also would have assisted in Commonwealth v. Torres.10Commonwealth v. Torres, No. 90 LEXIS (Mass. App. Ct. Sept. 2, 2016). In Torres, also an unpublished decision, the jury convicted the defendant of rape on the theory of force.11Id. at 2. On appeal, the Commonwealth argued constructive force, though the appellate court panel reversed because there was insufficient evidence that the victim submitted “because of fear.”12Id. at 2, 4. However, the panel indicated that there was sufficient evidence of penetration “without the victim’s consent in deciding whether the rape conviction should be reduced to indecent assault and battery, that there was sufficient evidence of penetration “without the victim’s consent.”13Id. at 5. The panel did not order resentencing on the lesser included offense of indecent assault and battery based on other trial errors. Again, without having to prove constructive force and only needing to establish that the victim did not consent — which the panel found had been done — the rape judgment would have been affirmed.
