Supreme Judicial Court, August 1, 2012

In a rape prosecution in which the Commonwealth must prove that a defendant knew or reasonably should have known that a victim's condition rendered him or her incapable of consenting, and where there is credible evidence of a defendant's mental impairment, a defendant is entitled to the jury's consideration of his mental condition as it relates to his ability to possess the requisite knowledge.

The victim, a sixteen year-old female, stayed at the defendant’s home for two evenings. On the second evening, the defendant served her alcohol. He continued to offer her more alcohol and at some point she laid down fully clothed on a bed refusing to drink anymore. She awoke on the floor at 5:00 am the next morning to the defendant who was pulling up her pants. She asked the defendant what he did to her during the night and he replied “nothing.” As the victim went to shower, she made several observations leading her to believe she was sexually assaulted. She was ultimately examined at a hospital in Las Vegas and DNA evidence collected from the vaginal swab matched the defendant.

At trial, the Commonwealth offered evidence that the victim was incapable of consenting. See Commonwealth v.  Blache, 450 Mass. 583 (2008)(when the Commonwealth relies on evidence that a rape victim was incapable of  consent to establish the element of lack of consent, the degree of force is only that which is needed to effect penetration). During the jury trial, the jury listened to an audiotaped statement by the defendant in which he declared “he was drunk that night and could not remember if anything had happened between him and the victim.” The Essex Superior Court jury convicted the defendant of rape and furnishing alcohol to a person under 21. The defendant appealed on several grounds; including, the judge’s refusal to instruct the jury that they could consider his state of intoxication when deciding whether he reasonably should have known of the victim’s incapacity to consent. The Supreme Judicial Court transferred the case on its own motion.

At trial, the judge instructed the jury as follows:

“The third prong which the Commonwealth must prove beyond a reasonable doubt, to make out the crime of rape, is that the defendant knew, or in the alternative, he reasonably should have known that [the victim] was impaired, to the point that she was incapable of giving consent.

When I say that the defendant knew that she was so impaired, I mean that he had actual, subjective knowledge of the fact, that he was conscious and aware of that fact. On this point, on the point of the defendant's knowledge, you may consider any impairment of the defendant's own thought process by reason of any intoxication on his part.

When I say the Commonwealth, in the alternative, must prove that the defendant reasonably should have known that [the victim] was impaired, I mean this: That the average, reasonable person, not intoxicated, and observing the situation as it existed, would have known that [the victim] was incapable of giving consent.

Thus, on the issue of knowledge, the burden is on the Commonwealth to prove beyond a reasonable doubt, at least one of these circumstances. Either that the defendant knew that [the victim] was incapable of giving consent, or even if he didn't know himself, the average reasonable person, would have known that she was impaired to the point that she was incapable of giving consent.”

The instruction has two alternative elements of knowledge. The first element of knowledge is subjective,  requiring actual knowledge. The judge correctly instructed the jury that they were to consider any impairment of the defendant’s including intoxication. The second element of knowledge, “that the defendant reasonably should have known of the victim’s incapacity” contains both a subjective and objective component. The judge incorrectly instructed the jury on this element of knowledge because the instruction “effectively foreclosed consideration of evidence of the defendant's intoxication as to the alternative element of knowledge.” The Court held that this alternative element of knowledge is not exclusively objective and the subjective component renders the defendant’s impaired state of mind relevant to the jury’s determination.

The Court held “in a rape prosecution in which the Commonwealth must prove that a defendant knew or reasonably should have known that a victim's condition rendered him or her incapable of consenting, and where there is credible evidence of a defendant's mental impairment, a defendant is entitled to the jury's consideration of his mental condition as it relates to his ability to possess the requisite knowledge.” It also warned that its holding “today should in no way be construed as reconsideration of our rejection of mistake of fact as a defense to rape cases generally.”

Finding error in the instruction, the Court next considered whether the error prejudiced the defendant. Based on  the limited evidence of the defendant’s intoxication offered at trial, the Court held the instruction was not prejudicial. The judgment was affirmed.