Rape, generally
Rape: MGL c. 265, § 22
Comm. v. Blache, 450 Mass. 583 (2008)
In a rape case where lack of consent due to intoxication is an issue, the prosecution must prove not only intoxication, but 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.
Comm. v. Gonzalez Santos, 100 Mass. App. Ct. 1 (2021)
Victim's testimony, standing alone, is evidence. "[T]wo bedrock principles of our law are that alleged victims of sex crimes are to be treated equally with other alleged victims of crime with respect to credibility, and that those against whom such crimes may or have been perpetrated are fully worthy of legal protection. As would be true were this any other type of criminal case, therefore, the victim's testimony alone, believed as it was by the jury, suffices to support the defendant's convictions."
Comm. v. Lopez, 433 Mass. 722 (2001)
MGL c. 265, § 22 does not require proof that the defendant meant to have nonconsensual sex or knew the victim did not consent. Therefore, a person charged with rape generally cannot claim they honestly and reasonably thought the victim consented as a defense. See Comm. v. Blache and Comm v. Mountry (both on this page) for case law where lack of consent due to intoxication is an issue.
Comm. v. McCourt, 438 Mass. 486 (2003)
To be considered aggravated rape, at least one of the following elements must be present in addition to the rape itself: (1) the infliction of serious bodily injury on a victim, in addition to the bodily harm from the act of rape itself; (2) the rape was committed by joint venture; (3) other felonies were committed against the victim in addition to the rape.
Comm. v. Mountry, 463 Mass. 80 (2012)
Under the Blanche test, above, where there is evidence of the defendant's mental impairment, "not only must the Commonwealth prove that the defendant knew or reasonably should have known of the complainant's incapacitated state, but the defendant also is entitled to have the jury instructed that they may consider credible evidence of his mental incapacity, by intoxication or otherwise."
Comm. v. Pena, 96 Mass. App. Ct. 655 (2019)
Skin-to-skin contact is not required to prove penetration in rape by unnatural sexual intercourse.
Comm. v. Prado, 94 Mass. App. Ct. 253 (2018)
"The defendant's act, while brandishing a gun during an armed robbery, of forcing the victim, against her will, to penetrate her vagina with her fingers, fell within the scope of 'unnatural sexual intercourse' under G. L. c. 265, § 22 (a), and was sufficient to convict the defendant of aggravated rape."
Comm. v. Sherman, 481 Mass. 464 (2019)
Withdrawal of consent. "Where the initial penetration was consensual, the fairest and clearest way to draw the line separating consensual sexual intercourse from postpenetration rape is to require, as an element of the offense, that the victim reasonably communicate to the defendant his or her withdrawal of consent."
Suliveres v. Commonwealth, 449 Mass. 112 (2007)
Court held that "intercourse where consent is achieved by fraud does not constitute rape." The Commonwealth had alleged that the woman believed she was having sex with her boyfriend, when in fact it was her boyfriend's brother. The court called on the Legislature to amend the rape statute, G. L. c. 265, § 22, if they felt that sex through fraud should be categorized as rape.
Drugging victim
Drugging for sexual intercourse: MGL c. 272, § 3
Commonwealth v. LeBlanc, 456 Mass. 135 (2010)
"Merely making alcohol or drugs available is not enough to convict under G. L. c. 272, § 3."
Rape of a child
See also Massachusetts law about child sexual abuse and the statute of limitations for more information.
Without Force
Child under 14: MGL c. 265, §§ 13B-13B-3/4
Child under 16 (commonly known as statutory rape): MGL c. 265, §§ 23-23B
Comm. v. Washington W., 462 Mass. 204 (2012)
The court dismissed statutory rape charges against a juvenile due to serious misconduct by the prosecutor. The prosecutor refused to provide data on the ages and genders of people charged in similar cases. This broke a court order and hurt the juvenile’s right to a fair trial. It kept him from proving his claim that he was selectively prosecuted because his sexual conduct was homosexual instead of heterosexual.
Commonwealth v. Wilbur W., 479 Mass. 397 (2018)
Discusses prosecution for statutory rape where both the victim and defendant are under 16.
Child under 18: MGL c. 272, § 4
With Force
Child under 16: MGL c. 265, § 22A and § 23
Other specialized categories of victims or perpetrators
Campus sexual violence: MGL c. 6, § 168D and § 168E
Indecent assault and battery of an elderly or disabled person: MGL c. 265, § 13H and § 13K
Indecent assault and battery of person with intellectual disability: MGL c. 265, § 13F
Indecent assault and battery by a law enforcement officer: MGL c. 265, § 13H 1/2
Indecent assault and battery by a health care provider or clergy member: MGL c. 265, § 13H 3/4
Rape by law enforcement officer: MGL c. 265, § 22(c)
Rape of a patient or client through false misrepresentation of medical treatment: MGL c. 265, § 22D
Revenge porn: St. 2024, c. 118 bans image-based sexual assault, also referred to as "revenge porn".
Reporting treatment & confidential communications
MGL c. 112, § 12A-1/2 Reporting treatment of victim of rape or sexual assault; penalty
MGL c. 233, § 20J Sexual assault; confidential communications with sexual assault counsellor; disclosure; discovery
Web sources
Frequently asked questions after sexual assault, Mass. Department of Public Health.
Answers questions on getting medical care and collecting forensic evidence after a sexual assault.
Harassment Prevention Orders based on sexual violence or stalking (G.L. c. 258E), Mass. Court System.
"If you have experienced sexual violence or stalking, you can ask the court for a Harassment Prevention Order. These orders are sometimes also called Harassment Orders or 258E Orders. You do not need to have any particular type of relationship to the person you want the order against. This means that they do not need to be a family or household member for you to apply for a 258E Harassment Order against them."
Landmark Massachusetts campus sexual violence act effective August 1, 2021, Katharine O. Beattie, July 2021.
Explains the provisions of the law, with practical tips for colleges and universities.
Massachusetts extends protections for counseling records of survivors of sexual assault, JDSupra, 2023.
Massachusetts Sexual Assault Nurse Examiner Program (SANE), Mass. Executive Office of Health and Human Services.
Links to application materials and more. "The Massachusetts Sexual Assault Nurse Examiner (SANE) program provides 24/7 emergency forensic nursing services across the Commonwealth."
Rape, Abuse and Incest National Network (RAINN)
RAINN operates the National Sexual Assault Hotline (800-656-HOPE) and connects people with local sexual assault service providers. They also run several programs related to preventing sexual violence and supporting victims.
Print sources
Campus sexual assault: Emerging issues in Title IX investigations & litigation, MCLE, 2017.
Emerging issues in Title IX compliance, investigations & litigation, MCLE, 2024.
Sexual assault trials, Lexis, 2022.
Trying sex offense cases in Massachusetts, 3rd ed., MCLE, loose-leaf.
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| Last updated: | March 25, 2025 |
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