The Massachusetts SJC held today in Commonwealth v. Richard Sherman, Jr. that in a rape trial, when the sexual encounter starts consensual and it is alleged that the victim withdrew her consent, that the defendant is entitled to a jury instruction that a consensual sexual encounter can become rape if the victim withdraws her consent during the intercourse and the defendant continues with sex by force or threat of force.  The SJC held that the instruction is required when the jury asks a question on this issue.

The Court found that the error was harmless in this case because the victim testified that the sexual encounter was never consensual while the defendant claimed that it was always a consensual sexual encounter.  The defendant was acquitted on the charge of oral rape which the court held meant that the jury could have concluded that the victim consented to oral sex but not penetration.  While these are two different theories of rape, the jury questions and the lack of instructions on an important element of the law does not seem to be harmless error.

Should the trial judge have admitted evidence of cocaine use?

The SJC found a second error in the trial also harmless.  The trial judge permitted testimony that the defendant’s memory may have been impaired based on his ingestion of cocaine.  SJC held that this testimony was improper without expert testimony showing that this particular drug would have an impact on someone perception.  The Court noted that the defendant did not make a proper objection to the admission of the testimony, meaning that the Court would review the prejudice to the defendant under the substantial risk of miscarriage of justice standard.  The Court found that the error did not likely impact the deliberation because the defendant was acquitted or one count of rape and the issue was not mentioned in the closing arguments of the attorneys

As a criminal defense lawyer, the SJC holding on the ingestion of cocaine is important in other types of cases aside from rape and sexual offenses.  The Court is requiring expert testimony to demonstrate the impact of any drug on a particular individual.

To read the decision in Sherman you may click here.

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