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Commonwealth v. Sherry

Citation. Mass. Sup. Jud. Ct. 386 Mass. 682. 437 N.E. 2d 224 (1982)
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Brief Fact Summary.

Sherry’s (D) argument when he was charged with rape was that he had believed the victim consented to sex.

Synopsis of Rule of Law.

A subjective belief is no defense to a rape charge on the ground that the victim consented.


Sherry (D), a woman and two of his male friends left a party together. Her leaving voluntarily or coercively cannot be determined but when they arrived at the home of one of the men, they smoked marijuana and chatted for a while. After this, the three men had intercourse with the woman who later pressed charges against them for raping her. The defense of the three which was that the woman gave her consent before they had sex with her was turned down by the court. The two men including Sherry (D) were convicted and they appealed.


is a subjective belief a defense to a rape charge on the premise that the victim consented?


(Liacos, J.) No. A subjective belief is no defense to a rape charge on the ground that the victim consented. The prosecution would have a serious burden of proof if the subjective mindset of an alleged perpetrator was crucial in passing upon consent, but this has never been so. But it is proper for the whole sequence of events from an objective perspective to be considered by the jury. In this case, an objective standard was created by the instruction the court gave and this was proper. If the belief is unreasonable, the defense of mistake of fact is not possible.


among the jurisdiction, there is no uniform rule on this issue.  Though a fully subjective approach is found on few, if, any jurisdictions. Those that do require the good-faith belief have to be reasonable although a good-faith-belief-in-consent is permitted by some.

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