Commonwealth v. Sherry
386 Mass. 682, 437 N.E.2d 224 (1982)

  • Sherry, Hussain, and Lefkowitz were at a party. There they met a girl and eventually took her to Lefkowitz’s house. All three slept with her. The next morning they drove her home.
    • There was some disagreement as to what exactly happened, but the girl claimed that she had been raped. The men claimed that it was all consensual.
    • The girl said no, but did no mean NO, or did no mean yes?
  • The three men were arrested and charged with rape. At Trial, the Judge instructed the jury should “look a the acts of the defendants, the victim’s responses to those acts, whatever words were used, examining the entire atmosphere, and not look at the case from the point of view of the defendant’s perceptions.”
  • The Trial Court convicted the three men of rape. They appealed.
    • They argued that the jury should have been instructed that “unless you find beyond a reasonable doubt that the victim clearly expressed her lack of consent, or was so overcome by force or threats of bodily injury that she was incapable of consenting, and unless you find beyond a reasonable doubt that the accused had actual knowledge of the lack of consent, you must find them not guilty.
  • The Massachusetts Supreme Court upheld the convictions.
    • The Massachusetts Supreme Court found that there is no requirement for the defendant to have actual knowledge of the lack of consent.
      • Basically, that’s a mistake of fact defense.
    • The Court found that “the essence of the offence is lack of consent on the part of the victim. When a woman says ‘no’ to someone, and implication other than a manifestation of non-consent that might arise in that person’s psyche is legally irrelevant, and thus no defense. Any further action is unwarranted and the person proceeds at his peril…I find no social utility in establishing a rule defining non-consensual intercourse on the basis of the subjective (and quite likely wishful) view of the more aggressive player in the sexual encounter.
  • Basically, this case said that if someone says ‘no’, the encounter is legally defined as non-consensual, even if you believe that they really mean ‘yes’.
    • But, if the defendant honestly and reasonably believes that he has consent, then he believes that he is acting legally. There is no mens rea to commit a crime, so how do the court justify a conviction?