Like everyone else living in New England, I could not avoid the exhaustive media coverage of the St. Paul School rape trial. From a legal perspective, there was nothing sensational about this case: a 15 year old student claimed that she had been forcibly raped by a senior at her school. The senior claimed that they fooled around but never had sex and the jury ultimately ruled that statutory rape (but not forcible rape) had been committed. The media frenzy was due to the fact that the involved individuals were students at an elite prep school. As the headlines clogged every local news source, I found myself thinking about how many of my young clients accused of sexual assault have numerous false assumptions about consent as it applies to sexual encounters. This post will cover the legal aspects of consent that I wish that my clients had known before they found themselves in need of my representation. I encourage you to share this information with young people in your life so that they can make informed decisions.
Age of consent.
Having sex with an underage person in Massachusetts can lead to a conviction for “Rape of a Child.” While some states have a separate crime of statutory rape for when the underage person is close to the age of consent, Massachusetts does not offer such a distinction. This means that an 18 year old convicted of having sex with his 15 year old girlfriend would have a conviction of “Rape of a Child” on his record.
Most young people are aware that there is a minimum age required to consent to sexual intercourse. Many even know that the age of consent in Massachusetts is 16. What they don’t know is the legal definition of sexual intercourse for the rape statute: sexual intercourse is defined as penetration of the victim, no matter how slight, and such penetration can be penile, oral, or digital (fingers). If the alleged rape involves oral sex, the underage person has been raped by law regardless of whether he or she performed the sexual act or was the recipient. When the alleged rape involves the stimulation of the vagina, no penetration into the vaginal opening is necessary; touching the labia or vulva of the vagina is rape under Massachusetts law.
Any unconsented touching that does not have penetration (even slight penetration) would constitute an “indecent assault and battery.” The age of consent for non-penetrative sexualized touching is 14. If that type of touching is done to a person under 14, who is legally incapable of consent, it would be called “indecent assault and battery under 14.” If the allegation is that the alleged victim is over 14, then the charge would be “indecent assault and battery over 14.” There is no list of the types of acts that could be considered criminal under the indecent assault and battery statute; the act must be a touching that was “fundamentally offensive to contemporary moral values.” Examples of touching that may lead to an indecent assault and battery charge include a “hand job”, touching another person’s genitals over his/her underwear or clothes, fondling of breasts, or grabbing of buttocks (although if the grabbing is underneath the underwear and in close proximity to the anus, the perpetrator could be charged with rape). Like with the rape statute, an indecent assault and battery can occur regardless of whether the alleged victim was given, for example, a “hand job” or if he performed a “hand job.” The touching does not need to be of a body part that is considered “private,” as long as the touching is “morally offensive.”
It will likely come as a surprise to people of all ages that a minor can be charged and convicted of rape of a child. For example, a 15 year old who has sex with a 13 year old schoolmate can be convicted of rape of a child. This may seem illogical since the 13 year old has also had sex with a minor and because these laws are intended to protect children (which includes the 15 year old). This scenario is not a hypothetical: this type of prosecution really happens in Massachusetts (and elsewhere).
There are no exceptions to the child rape law for people close in age who are dating. These so-called “Romeo and Juliet” exceptions were mentioned in the St. Paul School rape case because New Hampshire makes statutory rape a misdemeanor when the two individuals are close in age. There is no such provision in Massachusetts: the only benefit that the accused receives if the two are close in age is that the defendant would not be charged with aggravated rape of a child which carries a mandatory 10 year state prison sentence (the age difference for aggravated rape of a child must be 10 years if the minor is between 12-16 years old and 5 years if the minor is under 12). This means that an 18 year old who used his hand to stimulate his girlfriend’s vagina would be convicted of a felony that does not carry a mandatory sentence but could still result in a state prison sentence.
Many of my clients are unaware that a mistake as to the age of their partner is not a defense. It doesn’t matter that he or she looked older and/or affirmatively lied about his/her age. The reasonableness of accused’s assumption that his/her partner was older simply doesn’t matter in the eyes of the law.
A person convicted of rape will be required to register as a sex offender. In the juvenile court a judge has the discretion to waive the registration requirement, but if the accused is 18 or over (and therefore not a juvenile) he must register by law no matter what the circumstances behind the conviction might be. A judge can only waive the registration requirement for someone 18 or older if the conviction is for indecent assault and battery over 14. Indecent assault and battery under 14 requires registration just like rape.
What constitutes consent.
The other area where confusion lies among my clients is what constitutes consent. Most people know that if a person is physically forced to participate in a sexual interaction, then it is a sexual assault; many also know that if a person submits to a sexual interaction because he or she was threatened with violence if s/he didn’t comply, that also constitutes a sexual assault. What few of my clients seem to know is that sexual assault can be accomplished if it is against the alleged victim’s will. This means that no actual physical force or threat of force need to be used so long as the sexual interaction was against the person’s will; the circumstances surrounding the sexual encounter and the alleged victim’s state of mind will be relevant to determining whether there was consent. This was the issue in the St. Paul School rape trial: the young woman was not physically forced to have sex with the defendant nor was she threatened, but she insisted that she did not consent. Massachusetts law, like New Hampshire law, does not require actual physical force or threat of bodily harm for a rape conviction.
Another area of misunderstanding among my clients is that a drunk or high person who otherwise seems interested in having sex may be unable to consent due to their intoxication. I have heard so many protests along the line of “but we were having a good time” or “she was totally into it” but if he or she was too far under the influence to consent to the encounter, then it is rape. It is also rape if the victim is unconscious, asleep, or otherwise helpless and therefore incapable of consenting to sex.
Aiding and abetting
Sometimes there are uninvolved people who witness a sexual encounter. When the actual perpetrator is accused of rape or indecent assault and battery, the other people in the room may be charged with the crime under the theory of “aiding and abetting.” “Aiding and abetting” includes actually assisting in the commission of the crime but also encompasses being willing and able to assist if there is a need. The aiding and abetting law in Massachusetts is very broad and young people must realize that being in the presence of a sexual assault could lead to being charged with the crime. While just being present at the scene of a crime is not supposed to be the basis for a charge, the witness to the encounter could find him- or herself accused of being a lookout or otherwise being willing to help should the need arise. Obviously we all hope that an uninvolved person would intervene and come to the victim’s rescue, but if he or she decides that it is unsafe to do so, the law requires that he or she clearly communicate that s/he will not be a part of the endeavor and leave. That person should consult with a lawyer if police or school officials request to speak with him/her or if s/he chooses to report the crime in order to avoid any risk of being charged.
Young people must also know that if there is a sexual encounter involving three or more people, there are enhanced penalties if the prosecution proves that the alleged victim was sexually assaulted by two or more people working together to accomplish the crime. If the government proves that the accused individuals worked together to accomplish the crime of rape, they would be convicted of aggravated rape which carries a 15 year mandatory state prison sentence.
Protecting the teenagers and young people in your life
In addition to talking to the teenagers and young people in your life about protecting themselves and avoiding situations where they may be sexually assaulted, it is important to educate them about what constitutes sexual assault. I also encourage you to tell the people you care about that if they ever are approached by a police officer or school official with questions about a sexual encounter (regardless of whether they were actually involved) they should speak to a lawyer before making any statements. A conversation with a lawyer could save them from felony convictions and sex offender registration. Young people should also avoid bragging about their sexual conquests. Owen Labrie (the defendant in the St. Paul School case) was convicted in part because he bragged to his friends about an illegal sexual encounter and then met with police and made denials that were not believable (in addition to making obnoxious statements about his sexual morals.)
The young people in your life also should be warned against photographing or recording sexual encounters. If the person involved is under 18, the person with the camera could face child pornography charges. If the young person in your life receives a text or email with nude or sexually explicit images of a minor, he or she would be disseminating child pornography if s/he forwards the image or posts it on social media. This practice is commonly called “sexting” and is very common among teenagers. If that young person is ever approached by police or school officials who ask to look into his phone or computer, s/he should refuse unless and until s/he is shown a search warrant.
Please see my infographic on this issue.
If you or someone you love is accused of a sexual assault or anticipates being questioned about a sexual encounter, please call my office for a free consultation.