|Organization:||Massachusetts Supreme Judicial Court|
Commonwealth v. Sherman, Jr.
Supreme Judicial Court, February 13, 2019
(Withdrawal of consent/rape)
The Court now requires withdrawn consent after penetration rape instructions in two “rare” circumstances:
- Where there is evidence presented at trial that the victim consented to the initial penetration of sexual intercourse and later withdrew consent; or
- Where the jury asks a question concerning withdrawal of consent.
In these circumstances, the trial judge shall explain to the jury (1) that initially consensual sexual intercourse can become rape; (2) that the victim reasonably communicate to the defendant his or her withdrawal of consent; and (3) that force or threat of force is defined as only that necessary to compel continued intercourse after withdrawal of consent.
*Withdrawn consent need not be made by physical force and/or by using certain words. The Commonwealth need not prove that the defendant actually knew that the victim withdrew consent. The standard is that the victim reasonably communicated the withdrawal of consent in such a manner that a reasonable person would have known that consent had been withdrawn.