Massachusetts law about rape and sexual assault

Rape generally

Rape: MGL c.265, s.22

Comm. v. Blache , 450 Mass. 583 (2008)
In a rape case in which 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. 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. "The common thread in these cases is some form of forced penetration compelled by the defendant, and not a literal touching by the defendant."

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. This decision upheld the court's 1959 decision in Commonwealth v. Goldenberg, 338 Mass. 377, which held that "it is not rape when consent to sexual intercourse is obtained through fraud or deceit." 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, s.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

Without Force

Child Under 14: MGL c.265, s. 13B-13B-3/4

Child Under 16 (commonly known as statutory rape): MGL c.265, s. 23-23B

Comm. v. Washington W. , 462 Mass. 204 (2012)
Statutory rape charges against a juvenile were dismissed, where there "was egregious prosecutorial misconduct in repeatedly and wilfully failing to comply with the discovery order. There was also prejudice to the juvenile's right to a fair trial in that the juvenile was denied the opportunity to develop a factual basis in support of his claim that he was a victim of selective prosecution because the sexual conduct was homosexual rather than heterosexual."

Commonwealth v. Wilbur W., 479 Mass. 397 (2018)
Defendant, who was also under 16, was charged with rape by force, and jury found him guilty of lesser-included statutory rape. Discusses prosecution for statutory rape where both the victim and defendant are under 16.

Child Under 18: MGL c.272, s.4

With Force

Child Under 16: MGL c.265, s.22A and s.23

Other specialized categories of victims

Elderly or Disabled Person: MGL c.265, s.13H and s.13K

Person with Intellectual Disability: MGL c.265, s.13F

Reporting treatment of victim

MGL c.112, s.12A-1/2 Reporting treatment of victim of rape or sexual assault; penalty

Web sources

Analysis of college campus rape and sexual assault reports (September 2012), Mass. Executive Office of Public Safety and Security

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."

Print sources

Campus sexual assault : emerging issues in Title IX investigations & litigation, MCLE New England, 2017

Trying sex offense cases in Massachusetts, MCLE, 2017

Last updated:	July 7, 2020