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Commonwealth v. Sherry

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

Three defendants were convicted by a jury of rape for escorting the victim to a bathroom and each separately having intercourse with the victim. The trial court refused to give two instructions exactly as requested and the defendants appealed stating that the defendants were mistaken as to whether consent to sexual intercourse was given by the victim.

Synopsis of Rule of Law.

A defendant is not entitled to a specific jury charge so long as the one that was given was adequate.


The Defendants, Hussain, Sherry and Lefkowitz (Defendants) and the victim all attended the same party. Hussain and Sherry pushed the victim into a bathroom with defendant Lefkowitz and they did not open the door until Lefkowitz told the other defendants to leave the victim alone. Later, the Defendants grabbed the victim from the apartment where the party was being held and told her they were going to Rockport. The victim did not physically resist, but protested verbally. The victim testified she was not afraid while on the car ride to Rockport. When the quartet arrived at Lefkowitz’s house in Rockport, the victim asked to be taken home, but was carried inside instead. While there was no evidence of physical resistance, the victim was frightened and protested verbally as the defendants disrobed themselves and her and attempted to have intercourse with her. All of the defendants separately had sexual intercourse with the victim. All the defendants were convicted by jury of rape.
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Is the trial court’s failure to give a particular requested jury instruction prejudicial to the defendants?


No. A defendant is not entitled to any particular jury instruction as long as the charge, as a whole, was adequate. The defendants, in seeking to have the particular jury instruction read, appear to have been raising a defense of good faith mistake on the issue of consent. The defendants argued on appeal that mistake of fact negating criminal intent is a defense to the crime of rape. However, the Supreme Judicial Court of Massachusetts did not reach the issue of whether mistake of fact is a defense to rape, since the defendants did not request a specific jury instruction on a reasonable good faith mistake of fact.


While the Supreme Judicial Court of Massachusetts did not reach the issue of whether mistake of fact as to whether the victim consented to sexual intercourse is a defense to rape in this case, it did later hold that mistake of fact is not a defense. However, the general rule in the United States is that mistake of fact is a defense.

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