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19-P-352 Appeals Court

COMMONWEALTH vs. BRIAN BUTLER.

No. 19-P-352.

Essex. December 10, 2019. - March 26, 2020.

Present: Wolohojian, Agnes, & Neyman, JJ.

Indecent Assault and Battery. Mistake. Consent. Evidence, 

State of mind, Relevancy and materiality. Police Officer.

Indictment found and returned in the Superior Court 

Department on November 30, 2016.

The case was tried before Hélène Kazanjian, J.

Robert L. Sheketoff for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

WOLOHOJIAN, J. The primary issue in this appeal is whether 

the defendant, who was convicted of indecent assault and 

battery, G. L. c. 265, § 13H, was entitled to a mistake of fact 

as to consent instruction. Although the Supreme Judicial Court 

"hold[s] open the possibility that a mistake of fact instruction 

may be an appropriate and fair defense to charges of indecent 
2

assault and battery on a person age fourteen or older," 

Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018), we conclude 

that the trial judge did not err in declining to instruct on the 

defense because any subjective belief the defendant may have 

held as to the victim's consent was, in the facts and 

circumstances here, objectively unreasonable as a matter of law.

Background. The defendant was a Salem police officer. 

When he reported to the police station shortly before 7 A.M. on 

November 1, 2016, the victim, whom we shall call James, was 

being held in protective custody. James, who was in his late 

twenties and lived on Cape Cod with his mother, had been brought 

to the station about three and one-half hours earlier, drunk and 

wearing nothing other than a pair of saturated jeans and some 

Halloween makeup.1 Much of what subsequently occurred at the 

station was captured (both audio and video) by cameras located 

 

1 James had come to Salem with his sister and her boyfriend 

to participate in Halloween activities. By the end of the 

evening, James had become intoxicated to the point that he left 

the shower in the hotel room running, the tub overflowed, and 

there were several inches of water flooding both the bathroom 

and the bedroom. James was belligerent towards his sister and 

her boyfriend, who called the police. The responding officer 

saw that James was unsteady on his feet, his speech was slurred, 

and his eyes were glassy and bloodshot. James, who was naked 

and in the bathroom when the officer arrived, seemed confused 

about the officer's presence and admitted that he had been 

drinking. He eventually put on a pair of wet jeans. The 

officer determined that James posed a potential harm to himself 

or others, placed him in protective custody, and drove him to 

the station, where they arrived around 3:30 A.M.
3

throughout the station. We have reviewed these recordings

(videotapes); our narrative of the facts here includes not only 

the testimonial evidence at trial, but also what is shown and 

heard on the videotapes introduced at trial. The facts are 

largely undisputed.

During booking, James reported that he had drunk six shots 

of alcohol during the evening, that he suffered from anxiety, 

that he had previously been treated for depression and for a 

nervous breakdown, and that he had thought about taking his life 

the day before but that he was not thinking of killing himself 

at the moment. The booking officer told James that he would 

sleep at the station for a few hours and then be released. 

James was also told that he was not under arrest. After being 

allowed to place a call to his mother, James was placed in a

cell with a cup of water and a roll of toilet paper. He was not 

given a blanket. At some point, James took off his wet jeans 

and tried to cover himself with the toilet paper.

Shortly after 5 A.M., James, upset and apparently 

intoxicated, began banging on the door of his cell. He 

repeatedly shouted that he wanted "his phone call" and the word 

"now." He also made random reference to his father having voted 

for President Donald Trump. An officer tried to calm James by 

noting that he had already been allowed to call his mother. 

After asking why James had removed his pants, and noting that he 
4

was naked, the officer brought James a garment resembling a 

hospital gown, which he passed through a slot in the cell door. 

James subsequently fell asleep.

Shortly before 7 A.M., the defendant looked into James's 

cell and asked him why he had made "a mess of" himself, why he 

had no clothes on, where he lived, and whether he was under 

arrest or in protective custody (which James could not 

remember). The defendant said that he would check on James's 

status. He then asked where James had obtained the hospital 

gown, and suggested that James begin picking up the toilet paper 

that was strewn around the cell. James described his condition 

at this point as "sick" and still "very, very drunk."

Almost exactly thirty minutes later,2 the defendant (wearing 

his uniform) returned carrying a small trash can and let himself 

into James's cell -- despite the fact that it was against 

department policy for an officer to go into a cell without a 

second officer present. The defendant and James began to pick 

up the toilet paper, and after additional inquiry into James's 

situation, the defendant told James that he could leave the cell 

to call his mother. James stood up, holding the hospital gown 

to cover himself. The defendant turned to face James, put down 

the trash can, and took the hospital gown away. James attempted 

 

2 The police department's protocol required that prisoners 

be checked every thirty minutes.
5

to cover his genitals with his hands and turned away from the 

defendant. In response, the defendant said, "No, it's all 

right. I've seen a prick before, trust me." James, scared, 

turned to face the defendant and moved his hands away from his 

genitals. The defendant then commented on James's penis, "Very 

nice, though. Uncut and everything, hunh. Good for you." 

James turned away from the defendant, who then gave the garment 

back to James and said, "All right, here, just wrap it around 

you then if you want, you can come out naked if you want to --

I'm just kidding." James wrapped himself in the gown and 

followed the defendant to the booking desk to call his mother.

The phone was located on the officer's side of the booking 

desk, which was approximately chest-high. The defendant went to 

the officer's side of the desk to dial the phone. Meanwhile, 

James stood up against the other side of the desk. After the 

defendant dialed the phone, he came out from behind the desk, 

stood a few feet from James, looked down at James's crotch, and 

said, "[V]ery nice." He continued to look at James until it was 

apparent that the phone call was not going to be answered. The 

defendant then returned behind the desk and hung up the phone. 

There followed a discussion about James's lack of clothes, and 

James asked for a blanket, which the defendant said he would 

get. The defendant came out from behind the desk and took the 

hospital gown away from James, again leaving him naked. James 
6

again covered his genitals with his hands, and the defendant

commented, "It's okay, you don't have to cover up. My God." In 

apparent reference to James's penis the defendant said, "I do 

like that, though. That's good. You don't have to be that 

modest. I mean, my goodness." After the defendant gave James a 

blanket, the defendant placed his hand on James's hip above his 

right buttock and steered him back to his cell. Once James was 

back in the cell, the defendant again engaged him in 

conversation, asking how his jeans had become soaked. At the 

end of this conversation, the defendant took James's jeans away.

About forty-five minutes later, again in violation of 

department policy, the defendant returned to James's cell alone. 

The defendant told James that his mother had called and had 

provided James's sister's phone number. The defendant stated 

that he would allow James to call his sister, but James (whose 

relationship with his sister was strained given the events 

described in note 1, supra) said that he would prefer to wait. 

The defendant then engaged James in a conversation about his 

tattoos during which the defendant moved close to James, and at 

one point touched James's forehead. When James asked to call 

his mother, the defendant led James back to the booking area.

The defendant dialed the phone and then handed it across 

the booking desk to James. James's mother did not answer, and 

James left only a short message. James then started to walk 
7

back to his cell, but the defendant called him back and asked 

whether he wanted to call his sister. James returned toward the 

desk and the defendant approached him, placed his hand on 

James's buttock, and then pressed his body against James as he 

(the defendant) dialed the phone. After dialing the number, the 

defendant put his arm around James's waist and again placed his 

left arm on James's buttock, where he let it rest.

What happened as James then spoke on the phone with his 

sister is at the heart of this appeal, and so we set out 

separately James's testimony on the point as well as what is 

shown on the videotape. James testified that the defendant 

"reached around, grabbed my penis and started massaging it and 

whispered in my ear 'Is this okay?'" James responded, "[Y]es" 

because he was terrified and thought that he "wasn't going to 

get out" if he did not do what the defendant wanted. James did 

not want the defendant to touch him, but he was afraid that if 

he did not allow the defendant to do so, he "was not going to 

have a good rest of the day," that the defendant could hurt him, 

and that a cry for help would be futile or result in his 

"getting beat up or charged on some trumped-up charges or kept 

in jail for no reason or worse, like raped."

The videotape shows the defendant moving his left arm from 

James's buttock and then running it around to the front of 

James's body. At this point, the defendant was standing side by
8

side with James, and both men had their fronts facing the 

booking desk. After the defendant moved his left arm around to 

James's front, he asked, "Do you mind," to which James 

responded, "No." The defendant then said, "Can I go inside";3

James said, "[C]old"; and the defendant again said, "Can I go 

inside." During this short exchange, the defendant turned his 

body so that he could reach James's penis with his right hand 

rather than his left.4

The defendant then massaged James's penis for two minutes 

while James spoke with his sister, asking her to come to the 

station and to bring him some clothes. At no point did James 

move away from the defendant or physically resist. At the same 

time, James kept the blanket tightly wrapped around him and gave 

no physical sign of encouragement, invitation, or participation.

Once James finished speaking with his sister, the defendant 

told James to follow him to a broom closet (which was not under 

video surveillance) and fellated James after he said "yes." Two 

minutes later, a sound in the booking area caused the defendant 

 

3 The Commonwealth contends that the defendant said 

"outside" the first time, but our careful review of the 

videotape leads us to conclude that the defendant said "inside" 

both times.

4 We do not see any meaningful distinction between James's 

recollection that he said "yes" in response to an affirmativelyphrased question and the videotape's record that he said "no" to 

a negatively-phrased one. Linguistically, both expressed 

assent.
9

to "freak out," and he quickly left the broom closet to 

investigate. Seeing nothing, he returned to the broom closet, 

referring to "finishing off" James. After about eight and onehalf minutes, James told the defendant to stop but, fearing the 

defendant would "do something" to him as a result, stated that 

he would not "tell on him" and "if he wanted to come back later 

he could," but that James "can't right now." The defendant 

returned James to his cell.

James's sister picked him up not long thereafter. On the 

ride home, James became hysterical, called his mother, and 

disclosed the events to her. Some days later, he reported them

to the Salem police department.

The defendant was charged with rape and indecent assault 

and battery. The defendant neither testified himself nor called 

any witnesses on his behalf. Relying on James's testimony that 

he said "yes," and urging the jurors to assess the videotapes 

themselves, the defendant's consistent position at trial -- from 
10

opening5 through closing6 -- was that James gave actual consent

and was not so intoxicated that he could not do so.

We have set out in the margin the pertinent parts of the 

judge's instructions with respect to the indecent assault and 

 

5 Defense counsel stated in his opening:

"Mr. Butler says, 'May I go inside?'

"This 28-year-old male, whose level of sobriety you 

can figure out yourself, because you may not think he's 

intoxicated, he says something back. Again, you will hear 

it, whatever that word may be. We know from his 

conversation with the police it is 'Yes.' But it's 

followed by a phrase, something like 'cold.' And you can 

decide if there's a tone, a giggle, or a laugh. But 

whatever ambiguity you may have listening to that 'May I go 

inside?' response, Mr. Butler, who they want you to call 

guilty of rape, says again 'May I go inside?' 'May I go 

inside?' because he hasn't and he doesn't until [James] 

says yes.

"And for all the image of him there, the cold in his 

cell, and we all know that is terrible, the fact is that 

28-year-old man next to this man, Mr. Butler, who from all 

of their prior interactions, you will see, has never raised 

his voice, never done anything, is not armed, does not 

threaten, does not verbally or physically coerce, you will 

hear he says yes . . . ."

6 In closing, defense counsel stated:

"But [James], when he was given the question, chose to 

say yes. Not because he was coerced or intimidated. Not 

because it was a wise decision. Maybe his fog still 

existed. Bad choices get made.

"But it was a choice he made, conscious of his 

options. Conscious of his ability to exercise free will. 

There is nothing in the actual record of this case that 

shows otherwise. And to simply talk about the horrors of 

being raped doesn't substitute for the facts that exist."
11

battery charge.7 Among other things, the judge gave the mistake 

of fact instruction recognized in Commonwealth v. Blache, 450 

Mass. 583, 594 (2008),8 which was limited to situations where the 

 

7 The judge instructed:

"The word 'indecent' is not a technical term, but 

rather a common word that may be assumed to be understood 

in its common meaning by an ordinary jury. What is 

indecent should be measured [b]y common understanding and 

practices. For example, the fondling of a person's 

breasts, touching his or her buttocks, or reaching between 

his or her legs may constitute indecent assault and 

battery.

". . . 

"The Commonwealth must prove that at the time of the 

indecent assault and battery, the complainant did not 

consent. You may consider evidence of the complainant's 

state of mind at the time of the alleged incident on the 

issue of consent.

"Now, a complainant is not required to use physical 

force to resist. However, you may consider evidence of any 

attempt to restrain or confine the complainant, violence by 

the defendant, or struggle or outcry by the complainant on 

the issues of force and consent.

"However, lack of such evidence does not necessarily 

imply consent or the absence of force because in certain 

circumstances, physical resistance may not be possible. 

For example, the complainant in a certain situation may not 

resist with force because of fear of bodily injury or 

because actual force was being applied to him or her.

"You may consider all of the circumstances and the 

entire sequence of events in determining whether the 

indecent assault and battery was without the complainant's 

consent and his ability to resist."

8 The judge instructed:
12

ability to consent is impaired by drugs or alcohol. But the 

judge refused to give the defendant's additional requested 

mistake of fact instruction, which was not limited to situations 

of impairment by drugs or alcohol, but rather sought to have the 

jury consider whether he had an honest and reasonable belief 

that the victim had consented to the indecent touching. 

Specifically, the defendant requested that the jury be 

instructed:

"[I]t is the Commonwealth's burden to prove beyond all 

reasonable doubt that the Defendant would know that 

the Complainant did not consent to the acts of which 

[sic] are the basis of the indecent assault and 

battery charge alleged. If from all the evidence, you 

 

"If, because of the consumption of drugs and/or 

alcohol a person is so impaired as to be incapable of 

consenting to the touching, then any touching that occurred 

during such incapacity is without the person's consent.

". . .

"If you find that the Commonwealth has proved beyond a 

reasonable doubt that the complainant was so impaired as to 

be incapable of consenting as I have just described, and if 

you further find that the Commonwealth has proved beyond a 

reasonable doubt that the defendant knew or reasonably 

should have known that the complainant's condition rendered 

him incapable of consenting, then the Commonwealth has 

proved the element of lack of consent.

"In determining whether the Commonwealth has proved 

beyond a reasonable doubt that the defendant should have 

reasonably known that the complainant was incapable of 

consenting, you should examine whether a reasonable person, 

in the circumstances known to the defendant, would have 

known the complainant was incapable of consent."

See Blache, 450 Mass. at 594.
13

have a reasonable doubt whether the defendant[,]

reasonably and in good faith, believed that [James]

voluntarily consented to engage in the touching which 

[is] the basis of the indecent assault and battery 

charge, you must give the defendant the benefit of 

that reasonable doubt, and acquit him on that charge."9

During deliberations, the jury sent a note to the judge 

stating, "One of the jurors wants to know the legal definition 

of consent. For example, can't give consent if drunk; or that 

are [sic] other circumstances?" The judge and counsel discussed 

how to respond to the jury's note and concluded (with both 

parties' consent) to refer the jury back to the instructions 

previously delivered.

The jury acquitted the defendant of the rape charge, but 

convicted him of indecent assault and battery. This appeal 

followed.

Discussion. The defendant raises two issues on appeal. 

First, he argues that the judge erred in refusing to give his 

proposed mistake of fact as to consent instruction. Second, he 

argues that the judge erred in excluding evidence that the 

victim was gay. We examine each of these claims in turn.

1. Mistake of fact as to consent. The Supreme Judicial 

Court has stated that a mistake of fact as to consent defense 

"might, in some circumstances, be appropriate" in an indecent 

 

9 The defendant sought the same instruction with respect to 

the rape charge.
14

assault and battery case "where a defendant's claim of 

reasonable mistake of fact is at least arguably supported by the 

evidence" (citation omitted). Kennedy, 478 Mass. at 810. That 

said, the court has neither held nor implied that the defense is 

available in all indecent assault and battery cases.10 See id. 

 

10 Even in those States where the defense has been formally 

recognized, there are many circumstances in which appellate 

courts have ruled it is not required.

Alabama: White v. State, 237 Ala. 610, 613 (1939) (where 

victim was of low intellect, no error to refuse instruction); 

Rhoden v. State, 49 Ala. App. 605, 609-610 (1973) (instruction 

not necessary where covered by other instructions).

Alaska: Walker v. State, 652 P.2d 88, 92 n.7 (Alaska 1982) 

(waiver).

California: People v. Williams, 4 Cal. 4th 354, 362 (1992) 

(evidence did not support giving instruction; instruction not 

necessary where theory of defense is actual consent); People v. 

Burnett, 9 Cal. App. 4th 685, 690-691 (1992) (instruction not 

necessary where defense was actual consent); People v. Simmons, 

213 Cal. App. 3d 573, 579-581 (1989) (evidence regarding 

victim's conduct did not give rise to instruction and defendant 

did not testify); People v. Romero, 171 Cal. App. 3d 1149, 1156

(1985) (evidence did not rise to level requiring instruction and 

defendant did not testify); People v. Gonzalez, 141 Cal. App. 3d 

786, 792-793 (1983) (same).

Connecticut: State v. Jeffrey, 220 Conn. 698, 718-719

(1991) (instruction not necessary where defense was fabrication, 

not consent).

District of Columbia: Bryant v. United States, 859 A.2d 

1093, 1105-1106 (D.C. 2004) (evidence of victim's conduct did 

not support giving instruction).

Georgia: Johnson v. State, 204 Ga. App. 369, 369 (1992) 

(judge did not err in refusing to give instruction as evidence 

did not permit construction that defendant had reasonable belief 

of consent).
15

Nor has it ever held in any particular case that the defendant 

was entitled to the defense in light of the facts and 

circumstances presented.11 See id. (defendant not entitled to 

mistake of fact instruction because facts did not warrant it). 

See also Commonwealth v. Moran, 439 Mass. 482, 489-490 (2003); 

 

Indiana: Boyd v. State, 564 N.E.2d 519, 522-523 (Ind. 

1991) (evidence did not merit instruction); Tyson v. State, 619 

N.E.2d 276, 295 (Ind. Ct. App. 1993) (instruction not merited 

where defense was actual consent).

Missouri: State v. Lint, 657 S.W.2d 722, 726-727 (Mo. Ct. 

App. 1983) (evidence did not support instruction).

Nevada: Honeycutt v. State, 118 Nev. 660, 671 (2002)

(instruction not appropriate where there was evidence of 

threats, force, or coercion).

New York: State v. Williams, 81 N.Y.2d 303, 316-317 (1993) 

(evidence of force necessary for rape conviction precluded

instruction).

Oklahoma: Green v. State, 611 P.2d 262, 265-266 (Okla. 

Crim. App. 1980) (where no evidence of consent, no instruction 

required); Bosin v. State, 565 P.2d 1061, 1065 (Okla. Crim. App. 

1977) (same).

11 Moreover, except where the mistake of fact concerns the 

victim's capacity to consent, see Blache, 450 Mass. at 594, the 

mistake of fact defense has been rejected in sex offense cases. 

Thus, for example, because proof of force is required in rape 

cases, we do not recognize mistake of fact concerning the 

victim's consent as a defense in rape cases except to the extent 

recognized in Blache. See Commonwealth v. Lopez, 433 Mass. 722, 

728-729 (2001); Commonwealth v. Ascolillo, 405 Mass. 456, 463-

464 (1989); Commonwealth v. Grant, 391 Mass. 645, 651 (1984). 

Also by way of example, we do not recognize mistake of fact 

concerning a victim's age as a defense to statutory rape. 

Commonwealth v. Miller, 385 Mass. 521, 525 (1982).
16

Commonwealth v. Lopez, 433 Mass. 722, 732 (2001); Commonwealth

v. Ascolillo, 405 Mass. 456, 463 (1989); Commonwealth v. 

Cordeiro, 401 Mass. 843, 849-851 (1988); Commonwealth v. Grant, 

391 Mass. 645, 650-651 (1984); Commonwealth v. Sherry, 386 Mass. 

682, 697 (1982); Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 

191-192 (1991). Nonetheless, we begin with the premise that a 

mistake of fact as to consent defense may be available in cases 

of indecent assault and battery where "[t]he evidence, viewed as 

a whole, raise[s] the issue of honest and reasonable mistake." 

Simcock, 31 Mass. App. Ct. at 190. To understand whether the 

evidence did so here, we begin by examining the elements of 

indecent assault and battery on a person over the age of 

fourteen. We next examine the contours of the mistake of fact 

as to consent defense. Finally, we analyze whether the evidence 

fairly raised the defense such that the defendant was entitled 

to the instruction he requested.

"To prove indecent assault and battery on a person age

fourteen or older, the Commonwealth is required to establish 

that the defendant committed an intentional, unprivileged, and 

indecent touching of the victim" without the victim's consent

(quotation and citation omitted).12 Kennedy, 478 Mass. at 810. 

 

12 Where the victim is under the age of fourteen, proof of 

lack of consent is not required, G. L. c. 265, § 13B; the 

defense, therefore, would never be at issue.
17

Indecent assault and battery is a general intent crime. Thus, 

although the Commonwealth bears the burden of proving the victim 

did not consent to the touching, it does not need to prove that 

the defendant intended that the touching be without consent. 

See Moran, 439 Mass. at 490; Simcock, 31 Mass. App. Ct. at 188. 

The Commonwealth need not prove the defendant's state of mind 

regarding the victim's consent, see Lopez, 433 Mass. at 727 

("Historically, the relevant inquiry has been limited to consent 

in fact, and no mens rea or knowledge as to the lack of consent 

has ever been required"); Cordeiro, 401 Mass. at 850 (rape);

Grant, 391 Mass. at 650-651 (rape), except in the "special 

circumstances presented by a complainant who may have been 

incapable of consent," Blache, 450 Mass. at 599. Thus, although 

it is generally called a "defense," the defendant's state of 

mind as to the victim's consent is not truly a defense; instead, 

it negates an essential element of the crime. See Lopez, supra

at 725 n.3. Nonetheless, for convenience, we refer to it here 

as a "defense" in a nontechnical way.

In some cases, such as this one, the defense will be 

grounded in the victim's actual consent. In these situations, 

the defendant is not claiming to be laboring under a mistake of 

fact as to whether the victim consented. Instead, the defense 

is that the defendant intended to -- and did -- act with the 
18

victim's actual consent.13 In other cases, the defendant's state 

of mind is at issue because he claims that the victim's conduct 

was such that it led him to mistakenly and reasonably believe 

there was consent when, in fact, there was none. In these types 

of cases, if there is evidence of "clear, objective indicia of 

nonconsent," then the defendant is not entitled to the defense.

Kennedy, 478 Mass. at 811. Instead, there must be substantial 

evidence of objective manifestations (i.e., the victim's conduct 

or words) of the victim's state of mind that are sufficiently 

equivocal to have "led a defendant to reasonably and in good 

faith believe consent existed where it did not." Lopez, 433 

Mass. at 731 n.5, quoting People v. Williams, 4 Cal. 4th 354, 

362 (1992).

A mistake of fact as to consent defense focuses on a 

defendant's state of mind from both a subjective and objective 

viewpoint. See Grant, 391 Mass. at 651 (mistake of fact is not 

"raised in the absence of evidence from which the jury could 

find that, although the victim did not consent, the defendant 

reasonably and in good faith believed otherwise"); Sherry, 386

Mass. at 697 ("The defense of mistake of fact . . . requires 

that the accused act in good faith and with reasonableness"); 

 

13 The Supreme Judicial Court has suggested that, in 

declining to give a mistake of fact instruction, a judge may 

consider that the theory of defense was actual consent. See 

Moran, 439 Mass. at 490.
19

Simcock, 31 Mass. App. Ct. at 189 ("A requirement for an 

instruction based upon one's actual mistake as to consent 

without regard to its reasonableness in the circumstances would 

be difficult to justify"). The subjective component requires 

evidence that the defendant holds an actual honest (sometimes 

called good faith) belief regarding the victim's consent.14 

"[T]he defendant's actual belief is most often, and most easily, 

raised by direct evidence in the form of the defendant's 

testimony. . . . However, a defendant is not required to testify

or to present any evidence and may rely entirely on the 

Commonwealth's case to" fairly raise the issue of his subjective 

state of mind. Commonwealth v. Toon, 55 Mass. App. Ct. 642, 650 

(2002) (discussing self-defense).

The objective component requires that the defendant's 

actual belief be reasonable in the circumstances. Grant, 391 

Mass. at 651; Sherry, 386 Mass. at 697; Simcock, 31 Mass. App. 

Ct. at 189. A judge may determine, as a matter of law, whether 

the facts sufficiently raise an issue of objective 

reasonableness. Thus, for example, "[a] defendant who ignores a 

victim's clear and unambiguous pleas to stop does not raise a 

 

14 The dual requirement of subjective belief and objective 

reasonableness is not particular to the mistake of fact as to 

consent defense; it is also found in self-defense. See 

Commonwealth v. Harrington, 379 Mass. 446, 450 (1980); 

Commonwealth v. Harris, 376 Mass. 201, 208 (1978).
20

legitimate claim of mistake of fact as to consent." Kennedy, 

478 Mass. at 811. Likewise, proof of force "should negate any 

possible mistake as to consent." Lopez, 433 Mass. at 729. See

Commonwealth v. Sherman, 481 Mass. 464, 475 (2019).

We now turn to the defendant's proposed instruction, which, 

for convenience, we repeat here:

"[I]t is the Commonwealth's burden to prove beyond all 

reasonable doubt that the Defendant would know that 

the Complainant did not consent to the acts of which 

[sic] are the basis of the indecent assault and 

battery charge alleged. If from all the evidence, you 

have a reasonable doubt whether the defendant 

reasonably and in good faith, believed that [James]

voluntarily consented to engage in the touching which 

[is] the basis of the indecent assault and battery 

charge, you must give the defendant the benefit of

that reasonable doubt, and acquit him on that charge."

The defendant was not entitled to the first sentence because it 

was an inaccurate statement of the law. The Commonwealth is not 

required to prove that the defendant intended the touching to be 

without the victim's consent "or that [the defendant] had actual 

knowledge of the victim's lack of consent." Ascolillo, 405 

Mass. at 463; Cordeiro, 401 Mass. at 851 n.11.

We also conclude that the judge did not err in declining to 

give the remainder of the defendant's proposed instruction. 

Even accepting for the sake of argument that there was 

sufficient circumstantial evidence to raise a question as to the 
21

defendant's actual belief of James's consent,15 the evidence 

taken as a whole did not raise an issue that the defendant's 

belief was objectively reasonable. The defendant, an 

experienced police officer, could be presumed to know that a 

person cannot be held in protective custody unless he is 

incapacitated and, therefore, that James was in fact 

incapacitated.16 The power imbalance between the defendant and 

James should also be considered. The defendant was in charge of 

those in custody at the station. He controlled James's release 

from custody and James's ability to contact his family. He had 

taken away James's only clothing. By contrast, James, who was 

naked, was trapped at the station and completely dependent on 

 

15 Because the defendant did not testify, there was no 

direct evidence of his actual belief as to James's consent. In 

this unusual case, however, there was circumstantial evidence 

from which the defendant's state of mind could be inferred. 

Specifically, James testified (and the videotapes reflected) 

that James verbally assented to the defendant's request to "go 

inside." In addition, although James was not required to resist 

or physically rebuke the defendant, the absence of such physical 

resistance or rebuke, coupled with James's verbal assent, could 

give rise to an inference the defendant actually believed James 

had consented. See Toon, 55 Mass. App. Ct. at 651 (in absence 

of direct evidence, circumstantial evidence may serve as basis 

for inference as to defendant's actual state of mind).

16 James was in protective custody, G. L. c. 111B, § 8, 

because he was incapacitated by alcohol. "'Incapacitated' [is] 

the condition of an intoxicated person who, by reason of the 

consumption of intoxicating liquor is (1) unconscious, (2) in 

need of medical attention, (3) likely to suffer or cause 

physical harm or damage property, or (4) disorderly." G. L. 

c. 111B, § 3.
22

the defendant's help to leave. There were no other officers 

around to whom James could appeal for help; the defendant made 

sure that he was alone with James and out of view of others. In 

addition, the defendant manipulated James's vulnerability. When 

James tried to return to his cell immediately before the 

indecent assault and battery occurred, the defendant called him 

back and then kept him there by giving him the opportunity to 

call his sister. James, who needed his sister's help to get out 

of custody, was then essentially tethered to the booking desk by 

the phone cord while the defendant assaulted him.

Although it is true that James verbally assented to the 

defendant's question about "going inside," he testified that he 

did so because he was terrified and afraid of what might happen 

if he refused the defendant's advance.17 We have recognized "the 

particular power police officers -- or would-be police officers 

-- hold over ordinary citizens and the potential for abuse of 

 

17 We note that when police seek consent in other 

circumstances, such as to search or to take a person into 

protective custody, that consent must be voluntary. See

Ringuette v. Fall River, 888 F. Supp. 258, 268 (D. Mass. 1995) 

(consent to protective custody); Commonwealth v. Rogers, 444 

Mass. 234, 237 (2005) (consent to search). Thus, in the context 

of warrantless searches, the Commonwealth must prove "consent 

unfettered by coercion, express or implied, and also something 

more than mere acquiescence to a claim of lawful authority"

(quotations and citations omitted). Rogers, supra. "Subtle 

coercion, in the form of an assertion of authority or color of 

office by the law enforcement officers may make what appears to 

be a voluntary act an involuntary one." Id. at 246, quoting 

United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976).
23

that power to compel submission to unwanted sexual advances with 

less resistance than they might otherwise encounter." 

Commonwealth v. Caracciola, 409 Mass. 648, 656 (1991). 

Moreover, the evidence showed at least one offensive touching on 

James's buttocks before the defendant asked his less-than-clear 

question about "going inside," and James's testimony also placed 

the touching before the request. Finally, James gave no 

physical indications of encouragement or invitation, and he was 

not required to resist.

Thus, although there was circumstantial evidence to support 

a finding that the defendant may have subjectively believed 

James had consented to the touching, the evidence taken as a 

whole did not fairly raise an issue that the defendant's belief 

was objectively reasonable.

Another consideration supports our conclusion that, on the 

facts presented here, any subjective belief the defendant 

harbored as to James's consent could not be objectively 

reasonable. In the closely-related situation of people held in 

correctional institutions, the Legislature has eliminated 

consent as a defense where a correction officer engages in 

sexual relations with an inmate. G. L. c. 268, § 21A. In such 

prosecutions, "an inmate shall be deemed incapable of consent." 

Id. Although the provisions of that statute are not binding 

here, they reflect a legislative judgment pertinent to assessing 
24

the objective reasonableness of the defendant's belief as to 

James's consent in this case. It makes no sense to think that 

persons in police custody are any more capable of voluntarily 

consenting to sexual contact with their jailors than are inmates 

in correctional facilities. And we note that it would make good 

sense for the Legislature to correct this gap in legislation.

For all these reasons, we conclude that the judge did not 

err in declining to give the defendant's requested instruction 

regarding mistake of fact as to consent.

2. Exclusion of evidence of victim's sexual orientation. 

The judge correctly excluded evidence that James self-identified 

as gay on the ground that the evidence was not relevant. The 

defendant's argument that "it is more probable that a gay man 

would consent to the sexual advances of another man than a 

heterosexual man would" is unsupported by legal authority, 

citation, or logic.18 A sexual assault victim's sexual 

orientation has no bearing on his or her consent regardless of

whether he or she is heterosexual or homosexual. See Kvasnikoff

v. State, 674 P.2d 302, 305-306 (Alaska Ct. App. 1983); People

v. Murphy, 919 P.2d 191, 194-195 (Colo. 1996); People v. 

 

18 This is not a case where application of the rape shield 

statute would be in conflict with the "defendant's 

constitutional right to present evidence that might lead the 

jury to find that a Commonwealth witness is lying or otherwise 

unreliable." Commonwealth v. Polk, 462 Mass. 23, 38 (2012).
25

Hackett, 421 Mich. 338, 352-353 (1984). Moreover, its admission 

was barred by the rape shield statute. See G. L. c. 233, § 21B.

See also Mass. G. Evid. § 412(a) (2019).

Judgment affirmed.