Supreme Judicial Court (February 8, 2008)

In a rape case, an instruction concerning capacity to consent should be given where the evidence would support a finding that the complainant consumed alcohol or drugs to the point she was so impaired she was incapable of consenting to intercourse. Additionally, the Commonwealth must also prove, and an instruction should be given, that the defendant knew or reasonably should have known that the complainant's condition rendered her incapable of consenting.

In this case, the defendant, a police officer, was convicted of raping an intoxicated victim who was found to be incapable of consent. The defendant maintained the intercourse was consensual, and appealed his conviction arguing that the judge's instructions to the jury on the element of force and nonconsent were improper. Specifically, the defendant argued that the instructions concerning the circumstances under which a complainant may be found to lack the capacity to consent were improper. The appeals court affirmed the conviction and the SJC granted the defendant's application for review.

The SJC agreed that the instructions were inadequate and held that the standards set forth in Commonwealth v. Burke, 105 Mass. 376 (1870), properly articulated the correct principles to govern in cases of rape where the complainant lacks the capacity to consent.

The Burke holding
Premise #1
: While generally for the crime of rape the Commonwealth must prove that the alleged sexual intercourse occurred by force and without the complainant's consent, where the complainant is "wholly insensible so as to be incapable of consenting" (a) the element of nonconsent is satisfied; and b) the only force required for proof of the crime is "such force as was necessary to accomplish" the act of intercourse - - that is, only the force necessary to effect penetration.

Premise #2: Where the Commonwealth uses proof that the complainant has been rendered "incapable of consenting" to establish the necessary element of her nonconsent and to reduce the degree of required force, the Commonwealth should also prove the defendant's knowledge of the complainant's incapacitated state.

The SJC explained that over the years, the instructions given in rape cases that involved an intoxicated victim were unclear and needed clarification in order to define the Burke "wholly insensible" standard. The SJC explained that the issue here, as in Burke, is whether as a result of the complainant's consumption of drugs, alcohol or both, she was unable to give or refuse consent. An instruction concerning capacity to consent should be given in any case where the evidence would support a finding that, "because of the consumption of drugs or alcohol or for some other reason (sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse." This language will communicate to the jury that intoxication must be extreme before it can render a complainant incapable of consenting to intercourse. If the jury finds the Commonwealth has proved beyond a reasonable doubt the complainant's incapacity according to this standard, that finding satisfies the element of nonconsent, and therefore, the Commonwealth need only prove the amount of force necessary to accomplish intercourse.

The SJC also affirmed the second premise held in Burke. Where the evidence permits the Commonwealth to satisfy the element of nonconsent by proof of incapacity to consent, and therefore to satisfy the element of force simply by proof of penetration, there should also be proof, and an instruction given, that the defendant knew or should have known of the complainant's incapacity to consent.

NOTE: A proposed jury instruction that covers incapacity to consent, its effect on the elements of force and nonconsent, and the defendant's knowledge are set forth in footnote 19 of the opinion.