Defendant charged with rape, pulled his car next to the victim on a downtown street, telling her to get off the street. Defendant was wearing a gun, which was visible to the victim. Defendant told victim to get into his car, which she obeyed. The victim began to cry and defendant told her “he would lock her up for more things than he was planning on.” Defendant drove with her and stopped in a parking lot, told victim he was a police officer and raped her. Victim testified that she feared arrest if she did not consent to the rape.
On appeal, judge rules that there is no evidence of force which can be presented to a jury.
The Mass. statute’s plain language states that rape must have an element of “force and be against her will.”
Whether the element of force may be satisfied when there is no evidence of physical force.
Whether force does exist and sex is obtained by fraudulent statements is a legitimate defense to rape.
Yes, reversed. Defendant can be guilty where consent of the victim is obtained “from the victim’s fear arising from threats or conduct of a third party.” The court has previously instructed juries that they are entitled to “consider the entire sequence of events and acts of the defendants as it affected the victim’s ability to resist.” The impact of surrounding circumstances can impact a victim’s power to resist and place fear which induces the victim’s consent. These are relevant considerations for a jury.
Because defendant pretended to be a police officer does not reduce his charge to mere fraud. His threat of jail time or worse are sufficient “force” which the statute refers to. “As we read the statute, the force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence, or the threat of bodily harm. Where, as here, the Commonwealth relies on constructive force, it also must prove that sexual intercourse was against her will.” There is also evidence that the sex was against the victim’s will.
The legislature did not intend a redefinition of the term. This ruling is the first time which the court has outwardly stated that force may be “constructive” as well as “physical.” For several hundred years, courts have considered this issue and ruled that constructive force is not part of the statute. Strict construction of statute disallows this interpretation as does centuries of Mass. common law.