Boston Criminal Attorney Blog

In my last post on this subject, I discussed the irresponsibility of some organizations and media outlets, in taking extreme license in promoting legally invalid definitions of rape. In that post, I had mentioned views advocated by some colleges and universities.

When it comes to the university and academic community, consider the views of no less august an academic institution than Harvard University. In 1992, Harvard assembled a University Date Rape Task Force to study this problem and make recommendations for legislative changes in this area of Massachusetts sexual assault law. Shockingly, that report defined the majority of consensual sex between a couple as "rape" by the male, and proposed the most far-reaching restrictions of consensual sex imposed by any secular university in America. How? By requiring that almost all sex acts between a couple meet the requirements of a veritable contract negotiation, involving “expressed consent” and/or “reasoned consent” in advance of any sexual contact whatsoever. Apparently, in reaching these recommendations, one can only surmise that most of these task force members never had sex themselves.

Consent to sex rarely if ever involves negotiations and “expressed consent.” It is almost always the product of just the opposite: An escalating series of amorous exchanges which produce decreased reason and increased passion. More so, people in sexual relationships learn their partners' preferences, enabling them to interpret what their partners want, without expressed discussions. Harvard University’s task force wanted to deem any sexual act engaged in by a couple as "rape" unless it occurred following an openly articulated, explicitly communicated "yes" by the woman (note: the report never even mentioned the possibility that a man could be the victim of a same-sex rape.) This Harvard-produced report ignored the fact that most couples often have sex without explicitly discussing it beforehand. It’s called spontaneity, the last time I looked. According to the Harvard report, rape encompassed "Any act of sexual intercourse which occurs without the expressed consent of the complainant."

Thankfully, several of those recommendations were never fully implemented at Harvard, and that all occurred 18 years ago. So why is it relevant now? Because it created a wave of hysteria about what “rape” legally is and isn’t; it dovetailed on the appearance of GHB and other date rape drugs; and this report and others has fed radical feminist agenda to expand the legal definition of this crime, to include events and actions that would never before have been considered “rape”. Think not? Consider the emergence of a new term of art in this area of law – this one now called “Gray Rape.” This 'creative' term has been developed to describe any act of sex occurring between two people (heterosexual or homosexual) which:

• Does not involve any violence, or the threat of any violence
• Does not involve any coercion or pressure
• Does not involve the covert use of any intoxicating or sedating drugs or chemical substances

but which involves some element of second-guessing or regrets, “the morning after”, or following the sex that transpired. Thus, if someone engaged in sex and did not object, but later had “second thoughts” about whether he or she really should have had sex (for any reason at all - religious, cultural or otherwise,) the other partner might be charged with being a rapist.

Do not make the mistake of thinking this doesn't happen, or that if it does, it happens rarely. Just recently, I defended a college student accused of "date rape." An investigation of the facts showed that the young man accused was no more guilty of rape than you or I. The young woman involved had learned that the accused (her boyfriend,) had cheated on her with another woman, and she wanted revenge. So after they had sex at a dorm party, she accused him of spiking her drink with another drug that she had already ingested herself. These stories are not rare. They happen all the time. Due to my efforts as his defense attorney, this young man was acquitted. Another person might not be so lucky.

Media efforts to publicize these inapplicable “definitions” of rape, is what leads many people to file rape and/or sexual assault charges against innocent defendants in Massachusetts. Rape laws were developed to punish horrifying acts of violence and physical violation, and indeed they should. Date rape laws were later passed to deal with this legitimate problem, also. But women’s magazines who trumpet sex on every cover (are you listening, Cosmopolitan?) would do more justice in this area by concentrating on what rape really is, and what it isn’t, instead of feeding baseless chatter just to sell their magazines.

In the meantime, while each allegation of rape should be taken seriously, the underlying facts should be taken equally seriously. An entire life can be ruined with the pointing of one dishonest or misinformed finger.

Date Rape, also referred to as “Acquaintance Rape” can be a serious problem, and is real.

Notwithstanding that the media have been reporting date rape as a new phenomenon, primarily due to the covert use of an anesthetic drug, the practical reality is that drugs (most frequently alcohol,) have been involved in social situations culminating in Massachusetts sexual assaults since Prohibition ended, and even previous to that. The use or ingestion of chemical substances (primarily alcohol) during social or dating encounters is almost universal, and as a drug alcohol is notorious for lowering inhibitions, especially sexual inhibitions. The most recent difference – and a major one – surrounding date rape, involves the the covert, or secretive, introduction of a sedating drug into someone else’s (the victim's) drink. Rohypnol and Gamma hydroxybutyrate -- GHB -- are two of the most common substances used in drug-facilitated sexual assaults. Rohypnol is known on the street as "roofies."

The Massachusetts Legislature has proscribed this activity on a statutory level, in M.G.L. Chapter 272: Section 3: “Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person shall be punished by imprisonment in the state prison for life or for any term of years not less than ten years.” In a legally “pure” date rape scenario, after unwittingly ingesting the drug, the victim is rendered unconscious or so sedated that he/she cannot either formulate or communicate his/her consent or lack of it.

It is that absence of consent which can create the legal basis for a charge of rape. If one cannot mentally formulate the requisite consent to engage in some type of sex, then any sexual acts that follow are by legal definition non-consensual. The best way to think of this is to consider someone who is developmentally disabled (intellectually or emotionally.) Such a person lacks what is known as the “legal capacity” to consent to sexual conduct. (A similar, though not quite entirely analogous legal concept, is present is cases of statutory rape, where the law “vitiates” consent on the part of the underage party, because the state deems anyone under a certain age to lack the capacity to consent to sex at that age.) However, in cases of date rape, it is not just the absence of consent that forms the basis of the charge. It is the concomitant, covert introduction by the alleged perpetrator of a sedative drug or substance that the victim was unaware of – thus indicating the perpetrator’s intent to deprive the victim of consent.

Thus, when a “true” version of date rape occurs, it is justifiably a serious crime, aside from being morally objectionable. And when this truly occurs, criminal prosecutions are appropriate –just as a legal defense is appropriate. The problem with these cases, arises not out of the “clear-cut” situations, but out of the more nebulous areas involving sexual conduct between two people. And by the way, this problem is not an entirely heterosexual problem – it occurs quite commonly between gay men, and gay women. This area of law is not limited to just the “he said-she said.”

The more difficult problems arise when an allegation of “date rape” is made against someone, without the covert use or introduction of any sedating drugs such as GHB or “roofies,” and without the presence of violence or threats of violence. As a Massachusetts rape defense lawyer, I can assure you that these kinds of accusations are becoming more and more common – chiefly due to legally unfounded and exaggerated definitions of “date rape” that have been advanced by feminist groups and several politically-correct and legally-nervous colleges and universities. (Colleges and universities are notoriously fearful of being sued for civil liability – specifically negligence and premises liability - following an allegation of on-campus rape.) These interest groups and academic organizations, in my view, have taken the existence of a clearly objectionable and repugnant idea (covertly drugging or sedating someone, to allow a perpetrator to engage in non-consensual sex,) and have used that repugnant practice as a justification to try and promote “new” and expanded definitions of rape, magnifying traditional legal definitions to encompass and include actions and circumstances that would have never previously met the legal definition of rape. Many, though not all, of these “new and expanded” definitions of rape have been advocated by feminist advocacy groups, many (though not all) of whom have a decidedly anti-male bias. (These same radical feminist groups won’t like that honest characterization, but then again they attack anyone who disagrees with their views.)

I'll discuss more of these extremely unwise approaches to redefine rape, in my next post.

Media Reports that Boston police seized almost a ton of marijuana earlier this week, will be seized on by marijuana opponents as dramatic evidence of a serious problem in our society – one that must be eradicated no matter what the cost to taxpayers, no matter what the waste in police and prosecutorial resources. From these corners, I’ve heard comments that say this is “Proof of how much of a problem we’ve got.”

I’ll agree we have a problem: But it isn’t the amount of pot that’s stored or circulating in Massachusetts, and isn't Massachusetts crime – it’s the wasted financial and human resources that we spend trying to punish something that, when carried in modest amounts, isn’t even criminal anymore in this state. It has always struck me as amazing, how diehard opponents of marijuana can neither see nor learn from the lessons of this country’s failed, regrettable and ultimately tragic efforts at Prohibition in the 1930’s. That ill-conceived effort created more collateral crime, and caused more loss, deaths and heartache than had ever been conceived before its passage.

Criminalizing alcohol only spawned more crime, in the form of “protection money” to hide alcohol supplies; extortion to keep public officials and others silent about the use and location of it; and smuggling rings operated by organized crime (ever wonder where the name “Smuggler’s Notch” in ski country came from? It was a route alcohol smugglers used to illegally bring the product down from Canada, into New England.) These collateral activities resulted in violence, shootings and death on a shocking level. Police raids were conducted of ‘Speakeasies” where otherwise lawful people had to hide in basements just to socialize with a drink; “Dealers” came to prominence, who used violence to keep their territories and supply intact; Gang and turf wars were created, by competing underworld networks who battled to control the supply and availability of alcohol. Prohibition gave birth to Al Capone, fertilized and nurtured organized crime, and cost the nation and the states enormous money and law enforcement resources. The entire effort was a massive public policy failure, costing untold amounts of money and ruining many lives in the process. The federal government finally realized this failure, and made the sound decision to legalize the substance, regulate it, and tax it. Officials finally saw that any substance can be abused, that as human beings we are somehow pre-disposed to to seek relaxation from various natural substances, and that regulation and taxation of these products is the far wiser, more rational course than fighting something that cannot be defeated.

Why can’t opponents of marijuana legalization see obvious lessons learned here? In this recent pot bust of almost a ton of marijuana, many law enforcement officials see evidence of a widespread problem. I see evidence of millions of dollars in tax revenue lost to the state of Massachusetts, had we the intelligence to see that this substance is no more harmful than alcohol, and had the common sense to regulate its commercial sale, and tax it. As to the issue of harmfulness, it is a fact that, on a level of addiction potential – marijuana is far less harmful than alcohol. I see evidence of law enforcement resources that are wastefully re-directed to “combating” a substance that has been decriminalized by public referendum in Massachusetts, when carried in small amounts (an ounce or less.) I see police officers that could be combating serious crime – Massachusetts murders, Massachusetts rape and sexual offenses, robberies, sexual abuse of children, and truly serious Massachusetts drug offenses such as heroin and crack distribution (which, without a doubt, should be illegal.)

I see District Attorneys’ offices and staff prosecutors across Massachusetts who could be spending their time and talents (and tens of millions of dollars) on prosecuting violent crime and domestic abuse. While many law enforcement and District Attorneys’ offices will point to the sheer amount of pot found in this seizure and cite this as evidence of the ‘enormity’ of a ‘problem’, I see that amount being distributed (as alcohol is now legally) to a lot of recreational users across the state, largely in small quantities. Do the same people who dramatize that it was “a ton” of marijuana seized, realize how much all the alcohol sold in Massachusetts just this very day would weigh or amount to, if it were measured? Far, far, more than a ton – yet alcohol is legal, regulated, and taxed. And in this ton of marijuana, all I see going up in smoke is critically needed tax revenues that could be used to fight serious, violent crime. It is these tax dollars that could instead go to house the homeless, feed hungry kids, protect victims of domestic abuse, provide greater access to health insurance programs, and a host of several other laudable objectives. Instead, this money is used to prosecute users of a largely harmless substance that has been decriminalized in this state.

And in case opponents of this opinion think this view is without support, I’d suggest they review the opinions of a widespread (and widely respected) national association of major retired law police and enforcement officials, who share this view and advocate legalization, regulation and taxation of marijuana. Their organization: Law Enforcement Against Prohibition (LEAP).

In the interests of full disclosure, I think I should make it clear: I personally do not smoke marijuana. But based on over 35 years of observing others who have used marijuana (whether in college years, or afterward,) I do not believe this substance is especially harmful; I have yet to see anyone become “addicted” to its use in the widespread manner that I have seen alcohol addict countless people I know and have known. I simply view this as a civil liberties issue. In my professional career as a Boston criminal defense lawyer over 20 years, I have seen more examples of police and court resources wasted on marijuana prosecutions than I care to recall. I’m confident that if I were ever considered for a judicial appointment in Massachusetts, marijuana opponents would cite this post as a reason against my appointment to the bench. My position as an attorney and officer of the court in Massachusetts has always been clear: Criminal law must be adhered to, and I remain committed to that view. But the legislature should wake up to the public referendum approving decriminalization of marijuana, wake up to our deteriorating state revenue posture, and use common sense on this subject.