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Articles Posted in Rape &Sexual Assault

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.”

A lot of people ask me why it’s so crucially important that all criminal defendants be presumed innocent until proven guilty, especially when the evidence against the defendant at the time of the arrest and trial and trial seems so convincing. Usually, I answer that question with “What if you were the person accused? Would you think it right that you be presumed guilty?”

While this kind of hypothetical question usually silences the skeptic, it is real-life stories of people wrongfully convicted of crimes that they did not commit, which always brings home the point best. Exhibit “A” on this subject today is Anthony Powell, a man who spent 12 years of his life in prison for a Massachusetts rape that he did not commit. Powell was arrested in 1991 and charged with raping an 18 year-old woman in the Roxbury section of Boston. Based largely on the testimony of the victim, who identified Powell in court as her assailant, Powell was convicted and sentenced to twenty years in state prison. After serving 12 years for a crime he did not commit, Powell was released in 2004 after DNA evidence established that he could not have been the rapist. During those 12 years in prison, Powell never wavered in his claims that he was innocent, though who’s going to believe a convicted rapist, right?

Well, ironically enough, it was the prosecutor’s office that convicted Powell, the Suffolk County District Attorney’s Office, who eventually listened. In the 2-3 months after the March 1991 rape that Powell had been arrested and convicted on, two additional rapes and sexual assaults had occurred in nearby neighborhoods in Boston, but the assailant in those cases was never found. Years later, a man by the name of Jerry Dixon was convicted of several Massachusetts motor vehicle offenses, and was sentenced to nine months in jail for those offenses. Prior to Dixon’s release, corrections officials learned that he was required to retroactively submit a DNA sample stemming from of an unrelated armed robbery offense which also occurred in 1991. (Interestingly, the current Suffolk County District Attorney, Daniel F. Conley, prosecuted that case against Dixon in 1991, when Conley was still an Assistant District Attorney.) Dixon’s DNA sample was entered into the FBI’s Combined DNA Index System, or CODIS, and his DNA profile matched the DNA profiles that had been stored from the two 1991 unsolved rape cases that had followed the rape that Powell was convicted for.

The Massachusetts Legislature has enacted a number of laws relating to sexual abuse and sexual molestation against underage victims. There are several Massachusetts rape and sexual assault laws, but exactly what does “statutory rape” mean? Most people think they know the correct answer (“Sex with an underage girl”), while the truth is, most people are wrong about that. They’re wrong, because most people don’t know what: A) The word “sex” means legally; B) What “underage” means in Massachusetts; and C) The fact that an alleged victim is not limited to being a girl.

First, though, most people don’t know what “statutory” means. It refers to the fact that the prohibited act is defined by the Legislature, not the courts. Laws can come from a variety of different sources, including the courts. These types of laws are called “decisional law” or common law. “Statutory” means that the law came from an act of the Legislature, who defined what “rape” in this instance is. The relevant statute in Massachusetts is M.G.L. Ch. 265, Sec. 23-23B, which defines statutory rape as follows:

“Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.”

It seems that accusations of Massachusetts rape & sexual abuse can even reach into police departments.

Recently, an officer in the Lowell Police Department was charged with raping two prostitutes, and soliciting sex from other prostitutes, while on duty as a police officer. According to the Middlesex County District Attorney’s Office, Aravanh Lakmany was indicted by a Middlesex County grand jury on Thursday, June 23 2011. The indictment alleges that Lakmany, working the overnight shift for as a Lowell police officer, solicited several prostitutes since early 2009. Prosecutors allege that Lakmany would order the women to get into the back seat of his cruiser, and sometimes his personal car, and would drive the women to a secluded area where he would engage in sex with them. The District Attorney has alleged that Lakmany traded sex for his promise not to arrest the women for prostitution. As a Boston/Dedham Massachusetts sex offenses lawyer, I can assure you that sex offenses can often be highly complicated cases. Many are not anywhere near as “clear-cut” as they might seem. This defendant, like all criminal defendants, should be presumed innocent until proven guilty.

Also, I should point out: This indictment should not taint the image of the average police officer. The vast majority of police officers whom I know are honest, hard-working people. But this indictment does make clear: Anyone can be accused of rape.

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.”

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.

Forcible rape or sexual asaault, when it actually occurs, is a crime that is despicable. I wanted that to be my opening sentence in this post, for a good reason. When rape actually occurs, it should be investigated and prosecuted thoroughly. But in almost all rape and sexual assault cases, the central problem is that no one else was around during the alleged rape, other than the alleged assailant and the alleged victim, to offer any corroborative testimony as to the allegations made, or to the consensual or non-consensual nature of the event.

Increasingly, the problem of false rape accusations is coming more and more to the media’s, and the public’s, attention. Recent high-profile cases such as the Duke University Lacrosse case, in which three white players on the Duke University Lacrosse team were accused by a black erotic dancer of raping her, only to be later vindicated, and the Hofstra University rape case where a student accused four male students of rape, only to later recant her story, are becoming more common. The problem in all these cases is, “Who is telling the truth?” Substantively, a legal defense to a rape case consists of one of two approaches: 1) That sex between the accuser and the accused never occurred; or 2) That sex did take place between the accuser and the accused, but it was consensual. It may come as a surprise to a good number of people, but false accusations of rape can take either form of these two scenarios.

Let’s examine two questions: 1) Why would anyone falsely accuse another person of rape?; and 2) How common is the incidence of false rape accusations? The most common answer to the first question, usually reveals some element of revenge, for something done to the accuser that she (or he, believe it or not,) is angry or enraged over. A study conducted on this subject in the Journal Archives of Sexual Behavior, (Vol. 23, No. 1, 1994,) reported that false accusers were commonly motivated by a need for an alibi or a desire for revenge. In the Journal Forensic Science Digest, (Vol. 11. No. 4, December 1985,) equally common reasons given by women who falsely accused somone of rape were “spite or revenge,” and to compensate for feelings of guilt or shame (for having willingly engaged in the prior sex.) Alleged rape victims have admitted in the past that they had made the false rape charges for three reasons: 1) To create an alibi about some other event; 2) To exact revenge; and 3) To generate attention or sympathy. The need for attention is not uncommon, as was revealed in the case of the Detroit woman who gave police details about her alleged rapist and his truck, then admitted she had lied: it never happened. (Source: Detroit Free Press, April 21, 2004.) More recent has been the case of Dallas Cowboys football player Michael Irvin, who was falsey accused of sexually assaulting a woman in July of 2007. That woman later recanted her story, and the District Attorney involved dropped all charges against him.

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