SJC’s Ruling in Commonwealth v. Sherman Clarifies the Legal Boundaries of Withdrawn Consent in Sexual Assault Cases

February 13, 2019.

In Commonwealth v. Sherman, 481 Mass. 464 (2019), the Massachusetts Supreme Judicial Court ruled that for initially consensual intercourse to become rape due to withdrawal of consent, the victim must reasonably communicate the withdrawal, and the defendant must persist despite this communication. The court found that although the jury should have been instructed on this principle, the absence of such an instruction did not create a substantial risk of miscarriage of justice given the facts of the case.

Our Take:

Issues of consent are notoriously fact-sensitive.  It happens here that we are discussing consent in the most sensitive of contexts.  In Sherman, the SJC clarified and fortified the laws designed to protect against sexual violence in a manner which adequately preserved the privacy of consensual acts of intimacy.  

The Court here underscored that just because the answer was yes at first, doesn’t mean that a victim has to fight for their right to say no.  Our law has for years protected victims from sexual violence by not demanding that they physically fight off their aggressors.  The SJC fortified this rule and clarified its application in the context of withdrawn consent.

This was the most uncontroversial of decisions  — the Commonwealth agreed that withdrawn consent must be communicated.  The Commonwealth only questioned whether this self-evident fact needed to be instructed-upon.  

The SJC determined an instruction is warranted, but only in a narrow class of cases (where the facts raise the issue or the jury raises the question).  The Court was correct to recognize that cases involving withdrawn consent after consensual penetration are harder to evaluate.  An instruction can only encourage just verdicts by ensuring that jurors understand that consent may be freely withdrawn, but that the withdrawal of consent must be reasonably apparent.  The SJC’s decision ensures that the assault on human sanctity and dignity which accompanies rape is condemned, while the intimate acts of consenting adults remain free and private.  

It also bears mention that the decision here is consistent with the law on consent generally — In all other contexts, the law has recognized that withdrawal of valid consent should be evidenced by some reasonably perceptible act.  For example, in the 4th amendment context, once general consent to search is given, police may continue to act within the scope of that consent until they are reasonably made aware that consent is withdrawn.  Commonwealth v. Cantalupo, 7 Mass. App. Ct. 923, aff’d, 380 Mass. 173 (1979) (defendant invited a search of his jacket and offered no objection when the officer began searching his shoe).  So too in the context of police interrogations; once the interviewee consents to an interview in the absence of counsel, the interview must be terminated only when the suspect affirmatively requests an attorney. Commonwealth v. Jones, 439 Mass. 249, 258-259 (2003).