Supreme Judicial Court (May 10, 2007)

Sexual intercourse procured by fraud or deceit does not constitute a crime under G.L. c. 265, sec. 22.

The defendant slipped into the victim's bed at night and, impersonating her boyfriend (the defendant's brother), had intercourse with her. The victim was groggy with sleep, addressed the defendant by her boyfriend's name and, during intercourse, assumed the defendant was her boyfriend.

On these facts the Court ruled that the defendant's motion to dismiss should have been allowed, as no crime had been committed. M.G.L. c. 265, § 22, defines rape as sexual intercourse compelled "by force and against [the] will." The Commonwealth must prove both elements: force and lack of consent. In 1959, in Commonwealth v. Goldenberg, 338 Mass. 377, cert. denied, 359 U.S. 1001 (1959), the SJC held that intercourse where consent is procured by fraud does not constitute rape under the precise language of the statute. In this opinion the Court declined to overrule Goldenberg, reaffirming that fraud and misrepresentation can neither invalidate consent nor supply the requisite element of force.