Supreme Judicial Court (February 18, 2010)

Drugging a person for unlawful sexual intercourse, G.L. c. 272, § 3, requires evidence beyond merely demonstrating that the defendant provided drugs or made drugs available.

The defendant was convicted of numerous drug and sex crimes. The Appeals Court affirmed all but the conviction for drugging a person for unlawful sexual intercourse, finding that an erroneous jury instruction was prejudicial to the defendant. The SJC granted both parties' applications for further appellate review, and after interpreting G.L. c. 272, § 3, reversed the conviction for drugging a person for unlawful sexual intercourse.

G.L. c. 272, § 3 states, "Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse shall be punished…." The word "administer" is not defined in the statute, and the trial judge's jury instruction indicated that the Commonwealth had to prove that the defendant "gave or provided" a drug.

The SJC adopted the Appeals Court analysis and determined that the jury instruction was erroneous. The Court found that a conviction required more than simply giving or providing a drug - evidence of a forceful action or deception is required for a conviction.