Sexual Assault and the Defense of Consent

Anyone who watches the news, reads the news, or receives news alerts on their smartphones has probably either heard of or even followed the criminal case involving Bill Cosby. For anyone unfamiliar with the case, Mr. Cosby was charged with three counts of sexual assault. The alleged victim claimed she did not consent to the sexual contact while Mr. Cosby claimed that all the sexual acts were consensual. The Cosby case is a classic example of he said- she said and describes the majority of sexual assault cases.

Sexual assaults are classified differently in Massachusetts depending on the nature of the sex act. Charges involving rape include sexual intercourse and unnatural sexual intercourse. Unnatural sexual intercourse refers to oral and anal intercourse including fellatio, cunnilingus, and digital penetration. Charges involving indecent assault and battery refer to certain kinds of touching including kissing on the mouth, touching of the breasts, abdomen, buttocks, inner thighs, genitals, and pubic area.

Common Sexual Offenses in Massachusetts and Punishment for the Offense

  • Rape is punishable by up to 20 years in state prison for a first offense
  • Statutory Rape is punishable by up to life in state prison or any term of years. This charge applies to persons who have sexual intercourse with a child under 16 years old
  • Indecent Assault & Battery on A Child Under 14 is punishable by up to 10 years in state prison or up to 2.5 years in the house of correction.
  • Indecent Assault & Battery on Person 14 or Over is punishable by up to 5 years in state prison or up to 2.5 years in the house of correction
  • Rape of a Child Under 16 is punishable by life in prison or any terms of years

Every sexual assault case is different because the evidence that can be used against you or to help exonerate you can change depending on the facts of your individual case. Some sexual assault cases involve DNA evidence which can help prove there was sexual contact even though the existence of DNA itself does not prove whether the act was consensual or nonconsensual. Other cases center around technology including video recordings, snapchat videos, text messages, or other various forms of telecommunications. The prosecution can use videos, text messages, and other electronic writings to try and prove the sexual act was not consensual. For example, if after engaging in a sexual act, a man sends a text message the next day apologizing for being too rough, the prosecution will try to use this text message as evidence that the woman did not consent. While in some cases there is an adamant denial that any sexual contact ever took place, a majority of the sexual assault cases we handle involve a defense of consent.

One common type of consent case we often deal with involves two people who meet for the first time at a bar, have a couple drinks, and then go back to someone’s house and engage in a sex act. Later that night or the next morning, one of the parties, usually the female, claims the sex act was not consensual. In these kinds of cases, technology can actually beneficial. Often times there will be text messages, photographs, or other communications that show the act was consensual. In some cases, we can also request the woman’s phone records in court and examine her text messages to friends and family about whether the act was consensual. The most important thing to do if you are accused of a sexual offense is to invoke your right to remain silent and contact an attorney immediately!!! Any statement you make to the police can and will be used against you in court. Admitting that you engaged in a sex act with the woman already confirms half of her story; do not give the police evidence against you. Remain silent!

There are also certain crimes where consent does not matter. Statutory rape and Indecent Assault & Battery on a Child Under 14 are examples of the kinds of offenses where the law has determined a person is too young to consent. For example, a 17-year-old boy who engages in sexual intercourse with his 15-year-old girlfriend can be charged and found guilty of Statutory Rape. Even if the girlfriend consented, the law does not recognize her capacity to consent. In the case of the charge of Indecent Assault & Battery on a Child Under 14, a 16-year-old boy could touch his 13-year-old girlfriend’s buttocks and be charged and found guilty of Indecent Assault & Battery on a Child Under 14 even if the 13-year-old consented because the law does not recognize her ability to consent. A conviction for Statutory Rape or Indecent Assault & Battery on a Child Under 14 could result in sex offender registration and prison time.

If you have been accused of a sexual assault, we can help you! Contact us at Sweeney & Associates today for a free consultation at (617) 328-6900 or Your freedom and future could depend on it!

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