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Commonwealth v. Sherry

    Citation. 386 Mass. 682, 437 N.E.2d 224, 1982 Mass. 1560.

    Brief Fact Summary. Three men were convicted of rape and appeal based on the judge’s refusal to instruct the jury, per defendant’s request, that the jury find beyond a reasonable doubt that the accused had actual knowledge of the victim’s lack of consent.

    Synopsis of Rule of Law. The issue of consent in rape cases is not to be determined based on the subjective view of the aggressor.


    Facts. Three men were convicted for forcible rape of a woman, the issue at trial being whether or not the intercourse was consensual. At trial the defendants sought to use a mistake of fact defense with regard to the issue of consent and requested that the jury be instructed that it must find beyond a reasonable doubt that the accused had actual knowledge that the intercourse was non-consensual. The judge refused to instruct the jury in that manner and the defendants appeal.

    Issue. Should non-consensual intercourse be defined on the basis of the subjective belief of the alleged rapist?

    Held. No. Judgment affirmed.
    The issue of consent in rape cases should not be determined on the basis of the subjective view of the aggressor.

    In the court’s opinion, when a person says “no” to sexual intercourse the aggressor proceeds at his/her own risk.


    Discussion. This case introduces the section on state of mind in the context of rape cases. Maryland takes a strict liability view on the issue of consent in rape cases. Even an honest and reasonable mistake as to consent is not a defense to rape in Maryland [Commonwealth v. Ascolillo, 405 Mass. 456 (1989)].

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