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The Massachusetts Supreme Judicial Court considers question on the impact of intoxication in a rape case

Last month, I worked with faculty and classmates to submit an amicus brief to the Massachusetts SJC on a rape case that will be argued before the Court. The core of the case came down to prosecution's burden in establishing that the victim did not consent to the act and hence, it was rape. The standard in Massachusetts is that in situations where the victim is incapacitated (drunk, drugged, unconscious), the judge will give the jury an instruction that the jury must find that she was either utterly senseless or wholly insensible to warrant a finding that she was incapable of voluntary consent. We posited that this was a ridiculously high standard and that juries should only be given a general instruction that says you may consider whether alcohol affected the victim's ability to consent. This case is a big deal because it's placing a really high burden on the prosecution and focusing on the victim's actions. This is not the case in murder cases where the defendant can say he was too drunk to form the intent to murder his victim and if successful, his crime will be mitigated to a lesser offense and he will receive a lesser sentence or no sentence at all. In almost every area of the law, the Court protects intoxicated or incapacitated persons from their drunken actions - you can't execute a will if you're drunk, your contract won't be honored if you contract knowingly with another party who is drunk, and yes, you just might not be convicted of murder if you claim you were drunk at the time. The amicus has been filed with the Court - I will keep you posted on what happens in oral arguments and how the SJC decides the case. It's very likely that yours truly may have worked tirelessly for a couple of weeks to change the law in Massachusetts to accommodate victims' rights. Come on SJC! Do the right thing.

UPDATE: The case was finally decided on February 8, 2008 and the SJC held that although the instruction failed to clarify that an extreme degree of intoxication is required to find that the victim was incapable of voluntary consent. Most importantly, the SJC further found that "utterly senseless" or "wholly insensible" instruction was an erroneous standard. So, our amicus was successful as we were hoping to have that standard struck down. The aforementioned terms are very misleading and now juries will be tasked with a more general instruction. However, the extreme degree language is not exactly what we were hoping for but at least we have made some progress. You can read the decision at

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