Articles Posted in Rape &Sexual Assault

I’ve said something in particular about Massachusetts sexual assault cases on this site many times, but this time I have some more local and recent evidence to make the point again, so here goes:

People will occasionally ask me how I can defend people accused of sexual offenses, such as Massachusetts rape charges or Indecent Assault and Battery charges. My standard answer: “Because the defendant may not be legally guilty of the crime.” Let me make clear: Rape and sexual assault of any kind is an abhorrent crime. And for those found guilty after being prosecuted with solid, incontrovertible evidence, they should be punished accordingly to the law – after they have been given a fair and impartial trial, and have received a competent, aggressive legal defense in court.

But let me make something else clear, based on my almost 25 years of experience as a Boston, Massachusetts rape charges lawyer: Just because someone screams “rape,” does not always mean the person charged is guilty of that crime. What circumstances could make that so?

If it’s up to a company called DrinkSavvy, that straw in your mixed drink – and the plastic cup that holds it – may prevent future incidences of drug rape or date rape.

Here’s a typical “drug rape/date rape” scenario. An attractive woman – or man – is in a bar or nightclub. They could be on a date with someone, or have just met someone. Unbeknownst to that person, their “date” or the person they just met, spikes their drink with a drug that’s designed to neutralize their judgment and memory. The motive? Unconsented-to sex – which is legally rape in Massachusetts.

Up until now, innocent victims of this practice (which used to be known as “slipping a Mickey” to someone,) had no idea they were being given such a drug – not until, usually, the end of the evening, when they woke up after their drugged stupor, and realized that they have been raped.

Some people just don’t get it. What I mean, is that some people just don’t seem to understand that rape is a crime. And not just a word to use – and misuse – in a song.

In another display of complete insensitivity – and stupidity – a rapper, who I will not advertise here, recently wrote a song that condones the crimes of sexual assault and rape. Here are the lyrics to his rape — er, I mean, rap – song. “Put molly all in her champagne, she ain’t even know it/ I took her home and I enjoyed that/ she ain’t even know it.” The words in this song are about placing a drug into a woman’s drink without her knowing it, rendering her unconscious, and then raping her. What an offensive song to listen to.

As a Boston, Massachusetts rape lawyer, I can tell you that no woman in her right mind would ever pay the mere 99 cents it costs to download this “music” (and I use that term loosely.) And by the same token, no man worth his scruples would do the same either. Lyrics like this insult us all. When are these ignorant rappers going to realize that people do not want to hear crimes glorified in music lyrics? Furthermore, when are rappers going to understand that rape is a serious crime? Even worse, when are recording studios and record companies going to wake up and STOP the glorification of this and ANY kind of violence in “music”?

In my career, more than one person has asked me the oft-repeated question, “How can you defend people accused of rape and other terrible crimes?” My answer is always the same: “What if it were you who were accused? Would you want everyone to just assume that you were guilty, and throw away all presumptions of innocence and legal safeguards? Because someone is accused of a crime does not necessarily mean that they are guilty – legally guilty or factually guilty.”

Exhibit “A” on that point is a case I wrote about a couple of months ago, concerning a Boston University student by the name of Max Nicastro, of Thousand Oaks, CA, who was accused of rape by a female student. NiCastro was a star on the BU men’s hockey team, and thought by many to be headed for a career as an NHL pro. He had been a 2008 draft pick for the Detroit Red Wings; he had a promising career.

All that ended with the pointing of an accusatory finger by the young woman who made the accusations against Nicastro (the woman’s name was never released for understandable reasons): After he was arrested on February 19, he was suspended from the BU hockey team, and “withdrew” from the school (there was no comment at the time from either BU or NiCastro as to whether his departure from the school was voluntary or not.) Fast forward 3 ½ months to present: It seems that after extensive investigation, Suffolk County District Attorney Daniel Conley’s office has decided to drop the charges against NiCastro. Reason: Insufficient evidence to prove their case. The DA’s own office acknowledged that the office and “had an ethical obligation not to pursue it further.” Exactly what happened, I’m not presently aware. And I laud the DA’s office for reaching the decision they did. I think Dan Conley is a responsible and ethical prosecutor. I’ve worked with many a District Attorney’s office in defending Massachusetts sexual assault cases, and I know this: If they had any credible evidence to move the case forward, they would have.

As a Massachusetts rape attorney, it is my duty to zealously defend my clients to the best of my ability. However, there are certain things a rape defense lawyer cannot do in the process of defending a client in court.

In the past, criminal defense lawyers would utilize a certain strategy in order to win their rape cases. This very frequently involved bringing up information about the alleged victim’s prior sexual history, and thus, undermining the accuser’s credibility. This now-outmoded legal practice discouraged many alleged rape victims (almost always women,) from pressing charges at all, for fear of aggressive cross-examination in court about their sexual history. Many people, primarily women’s rights activists, felt this courtroom practice should be prevented, since merely because an alleged rape victim may have been sexually active in her (or his) past, did not necessarily mean that the alleged victim consented to the sexual contact that was at issue in a rape trial.

Things have changed, and most people can understand why. In all states today with the exception of Arizona, there exist “rape shield laws,” which prevent the defense from introducing evidence of an alleged rape victim’s prior sexual history or alleged sexual reputation. These laws were gradually introduced state-by-state in the 1970’s. In this state, the Massachusetts Rape Shield Law does not permit the introduction of a rape victim’s prior sexual history and sexual reputation by a defendant’s attorney. That law is governed by Massachusetts General Laws. Ch. 233, Section 21B. Before Massachusetts enacted its own rape shield law, a Massachusetts rape defense lawyer could employ this strategy in a variety of cases, not only in a Massachusetts rape charge, but in a variety of Massachusetts sex crimes charges, including statutory rape, aggravated rape, and assault with intent to commit rape.

Convicted rapist William Polk of Dover, Massachusetts, has good reason to be optimistic today, now that the Massachusetts Supreme Judicial Court has granted him a retrial on the statutory rape charges he was convicted of two years ago. Mr. Polk was convicted in February, 2010, on two charges of Massachusetts statutory rape, for allegedly raping a then 15-year-old girl. What was highly unusual in the case was not the questionable testimony involved, but that almost the entire town of Dover actively spoke out in support of Mr. Polk while he was awaiting trial, during his trial, and after his conviction. Indicative of the level of community support he received, after Mr. Polk was indicted and charged, he was not fired from his job as a sports coach – working with high school-age students – in Dover.

After a jury deliberated five days, the jurors returned a guilty verdict. Superior Court judge Janet Sanders sentenced Polk to four to five years in state prison, but his attorney appealed his conviction. The court granted his application for direct appellate review, and this week ruled that defense testimony was improperly excluded by Judge Sanders, ordering a retrial.

Court documents reveal that there was an exclusion of evidence at the trial two years ago, indicating prejudicial error in the process. That evidence pertained to the expert testimony of a licensed psychologist, Dr. Daniel Brown, and the victim’s biological mother. Dr. Brown’s testimony, for example, would have revealed that he believed that the alleged victim had a psychological condition known as “dissociative amnesia,” and thus, could have fabricated or distorted her allegations against Polk. But Judge Sanders ruled, in favor of the prosecution, that Dr. Brown wasn’t allowed to give his testimony in the Norfolk Superior Court trial. At the time of the trial, Judge Sanders ruled that Dr. Brown’s opinion was speculative.

Call this one the April Fool’s Joke that no one thought funny.

It was all about Massachusetts rape, Massachusetts prostitution, and Massachusetts date rape, involving fairytale characters.

It seems that the editor of the Boston University Daily Free Press newspaper – who interestingly enough, is a woman – thought it would be hilarious to feature a special April Fool’s edition that made light of Massachusetts rape on campus. The editor, one Chelsea Diana, had a top story about seven dwarves who sexually assaulted a student, and included a picture of Snow White drinking a cocktail spiked with a Massachusetts date-rape drug.

It’s often said that “time heals all wounds.” That may be true in many areas of life, but often not when it comes to sexual assault and rape. Nothing proved that more than the sex abuse scandal within the Roman Catholic church, which was finally forced to face justice (civil justice, at least,) for sexual abuse that it hid decades into the past.

Another example of how time doesn’t necessarily heal all wounds of this type became apparent yesterday, when Governor Deval Patrick‘s office announced the suspension of the head of the Massachusetts National Guard, over allegations that he raped a woman 28 years ago, in 1984. Joseph C. Carter, Adjutant General of the Massachusetts National Guard was placed on administrative leave with pay pending the investigation of allegations that he raped a female subordinate while he and the woman were on a training mission to Florida with a military police unit. Ironically, the woman’s allegations were investigated several months following the alleged sexual assault. The investigating officer at the time reportedly advised the victim, a Ms. Susan Pelletier, to report the matter to civilian police, but she declined out of fear of retaliation by Carter, she says. Instead of reporting the allegations to civilian police, she has stated that she requested a transfer to a different unit, and, when her request was rejected, she said she stopped reporting for duty. Consequently, she says, she was dishonorably discharged from the National Guard, at age 23. This is where the plot thickens.

Pelletier says that she changed her mind about the Guard several months later, and asked to be reinstated, citing the alleged attack as the reason she went AWOL. This prompted Guard officials to launch an investigation, and a Guard lawyer by the name of Lt. Colonel Mark Murray was assigned to investigate. After investigation, Murray reportedly advised Pelletier to report the allegations to civilian police. She declined due to the fear of retaliation she said she felt from Carter. The matter seemed to die a natural death (or death by inattention.)

Earlier this week, the fabled Boston University hockey team received a slap shot of its own, when one of its players was arrested on Massachusetts rape charges.

A Boston University spokesperson confirmed that Max Nicastro, a defenseman on the hockey team, was arrested on Massachusetts sexual assault charges. BU police arrested Nicastro, age 21, Sunday, Feb. 19 on the Charles River Campus. They reported that a female student accused Nicastro and that allegedly, the incident occurred on campus, but little other details were released. Nicastro was arraigned Tuesday Feb. 21 in Brighton District Court on two counts of rape, and was released on $10,000 cash. As a Boston, Massachusetts rape defense lawyer, I’ve seen bail go higher and lower than that, but regardless, $10,000.00 cash is no small amount. At the arraignment, prosecutors did not reveal any information about the allegations, due to the fact that Boston Municipal Court Judge Franco Gobourne ordered all reports in the case to be impounded, citing the confidentiality interests of the alleged victim. Allegedly, the sexual assault occurred in the early hours of Sunday February 19, just hours after Nicastro scored a goal in BU’s loss to UMass-Lowell on Saturday night, February 18 at BU’s Agannis Arena. He was arrested at 6:30 AM Sunday, February 19.

Nicastro has claimed he is innocent of the charges, and his attorney has commented that, “We believe that when all the facts are out there, this will be found to not be a criminal act.” Regardless of the final outcome of this case, consider the kind of lifelong damages that can easily result from an allegation of rape or sexual assault: Nicastro was a rising star in the hockey world and was third-round pick of the Detroit Red Wings in 2008, when he was just 17. Earlier this week, a BU spokesperson confirmed that Nicastro was not only expelled from the hockey team, but he is longer a student at BU. The spokesperson refused to comment on whether Nicastro voluntarily withdrew or had been expelled. It doesn’t matter that, constitutionally, Nicastro is presumed to be innocent until proven guilty: His personal life and quite possibly his professional career are forever blemished and compromised. More so, the allegations have spread beyond just Nicastro, and impacted the entire BU sports culture: Due to the fact that another BU hockey player and the team’s top scorer, Corey Trivino, was accused of sexual assault in the past ten weeks, the entire hockey culture at BU is being investigated by the school. Trivino, who like Nicastro pleaded not guilty to the charges, was forced off the hockey team, but remained a student at the school. Not so for Nicastro: He is history at BU.

A few years ago, the Massachusetts Legislature passed a law prohibiting defendants convicted of certain Massachusetts sex offenses from being placed as residents in nursing homes. Ostensibly, the law applied only to Level 3 sex offenders, which are considered the most likely to reoffend, according to the Massachusetts Sex Offender Registry Board (“SORB.”) The goal, obviously, was to protect a vulnerable population from convicted sex offenders.

On its face, it sounds like good public policy. But, as is usually the case, something happened on the way to an otherwise good idea. In this case, that something was a Superior Court judge’s ruling that a man (known only as “John Doe” in court pleadings,) who had been previously convicted of a sex offense and classified by SORB as a Level 3 offender, was no longer a sexually dangerous person. Subsequent to that ruling, “Doe” needed to be admitted to a nursing home. After Boston Police learned that this man had been placed into a certain nursing home, they told him he had to leave the facility, which he did. “Doe’s” lawyer later claimed in court that the law was unconstitutional because it was overreaching, and because it provided no opportunity for Doe to prove that he was no longer a risk to other residents and staff in the facility.

In a unanimous (7-0) ruling, the Supreme Judicial Court (SJC) agreed, holding that the law prohibiting Level 3 sex offenders from placement in Massachusetts nursing homes violates the state’s Declaration of Rights, in that it turns a person’s right to choose where to live, into in effect a crime. The opinion was written by Associate Justice Fernande R.V. Duffly, one of the newest additions to the court under Gov. Deval Patrick. She wrote, “Those who have been released from incarceration … are free to live where they choose and to move freely within and without the Commonwealth.” A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our state constitution.”