Criminal Law - Permissible Lack-of-Consent Inference Is One Step Forward in Reforming Rape Law in Massachusetts - Commonwealth v. Paige, 177 N.E.3d 149 (Mass. 2021).

• Author: Kosh, Kyra

To prove one type of aggravated rape in Massachusetts, the Commonwealth must demonstrate beyond a reasonable doubt that the defendant forcibly compelled the victim to submit to sexual intercourse that also was committed with, or resulted in, acts causing serious bodily injury. (1) Because of the obvious difficulties in establishing lack of consent where the victim died in connection with the aggravated rape, jurors may consider the totality of the circumstances in determining whether the sexual intercourse was consensual. (2) In Commonwealth v. Paige (3) the Supreme Judicial Court of Massachusetts (SJC) considered whether the Commonwealth had presented sufficient evidence to support the jury's finding that the defendant contemporaneously had nonconsensual sexual intercourse with and fatally injured the victim. (4) The SJC affirmed the conviction, concluding that jurors may infer lack of consent where there is evidence that the defendant severely injured and killed the victim proximate to the act of sexual intercourse. (5)

In 1987, Dora Brimage was at a Labor Day party in Boston when she asked James Paige's brother for a ride home. (6) After another person offered to drive her, Paige--whom Brimage did not know at the time--forcefully insisted that he and his brother would take her home. (7) Brimage then reluctantly entered the vehicle with the two brothers. (8) The next morning, construction workers found Brimage's corpse inside a dirty work site where some of Paige's family members worked, lying in a pool of blood on a piece of sheetrock. (9) Brimage's shirts were pulled up, her bottoms and underwear were pulled down around her ankles, and it appeared that someone had used a construction shovel to bludgeon her so severely that it seemed "she no longer had a face." (10) An autopsy revealed that Brimage died from blunt-force head injuries and ligature strangulation and that someone deposited sperm inside her vagina within twenty-four hours of her death--although the medical examiner did not find any sperm on her underwear. (11)

The crime remained unsolved for decades until subsequent DNA testing revealed the sperm inside Brimage's vagina matched Paige's genetic profile. (12) When officers interviewed Paige during their initial investigation in 1987, he told them that he and his brother had dropped Brimage off at a club nowhere near the work site where her body was found. (13) But during his 2015 interview, Paige admitted that he and his brother drove Brimage to the street next to the work site, although he denied ever having sexual intercourse with her. (14)

At trial, Paige unsuccessfully moved for a required finding of not guilty, alleging there was insufficient evidence to support a conviction of first-degree felony murder with a predicate offense of aggravated rape. (15) The jury ultimately found Paige guilty. (16) On appeal to the SJC, Paige reiterated his argument at trial, contending the Commonwealth failed to prove the necessary lack of consent to the sexual intercourse or that he killed Brimage. (17) Paige reasoned that because there was no injury to Brimage's genitals nor evidence of hostility between the two, and because it is equally likely that Brimage was killed at some later point after they had consensual sexual intercourse, the evidence did not support a guilty finding beyond a reasonable doubt. (18) The SJC rejected Paige's argument, concluding that the jurors rightfully inferred lack of consent because the evidence shows that Paige severely injured and killed Brimage proximate to the act of sexual intercourse. (19)

Historically, Massachusetts statutorily defined rape as the ravishing and carnal knowledge of any woman--who was not the accused's wife--by force and against her will. (20) Despite the SJC's statement in 1870 that the question of consent for a charge of rape is a "simple" one, this issue has been--and continues to be--far from simple, especially where the defendant murders the alleged rape victim so they are unable to testify to their lack of consent. (21) And if there is evidence that the alleged victim is or was a prostitute, the issue of consent is even more complicated. (22) Massachusetts, however, has not explicitly required rape victims to affirmatively demonstrate their lack of consent through physical resistance in order to receive justice. (23) While evidence indicating that the alleged victim used physical resistance is frequently essential to establishing lack of consent, the ultimate question for the jury is whether the evidence shows that the alleged lack of consent was "honest and real." (24) Jurors may infer lack of consent from circumstantial evidence alone, and their inferences need not be necessary or inescapable--only reasonable and possible. (25)

In Commonwealth v. Scesny, (26) the SJC unanimously held that there was insufficient evidence of aggravated rape, even though the defendant's sperm was found inside the victim; the victim was found with her pants and underwear pulled down to her knees; she sustained brutal injuries; and her cause of death was strangulation by ligature. (27) The SJC concluded that evidence from which the jury could reasonably infer lack of consent was absent because the victim had worked as a prostitute in the past and may have been working in that role on the night of her murder; the police found her body about a mile away from an area prostitutes frequent; her clothing was not ripped or torn; and there were no injuries to her sexual organs. (28) Because the SJC reasoned that the totality of the circumstances could equally favor the inference that the defendant had consensual sexual intercourse with the victim before murdering her, the court concluded that the evidence did not establish lack of consent, nor consent, beyond a reasonable doubt. (29)

In an effort to prevent sexual abuse and make the path to justice easier for rape victims, some jurisdictions have turned toward an affirmative consent standard. (30) Affirmative consent generally requires both parties to freely, voluntarily, and consciously express their willingness to participate in sexual intercourse-- either verbally or through actions that would indicate such willingness to the other party in light of the totality of the circumstances--for the act to be consensual. (31) Absent evidence of words or overt conduct that would lead an objectively reasonable person in the defendant's position to believe that the alleged victim affirmatively consented, lack of consent is presumed. (32) It follows that an alleged victim's silence, lack of physical resistance, or prior consent to a sexual encounter, in and of themselves, are legally insufficient to overcome the presumption of lack of consent under an affirmative consent standard. (33)f Thus, the focus of a rape prosecution shifts to whether the defendant obtained the alleged victim's affirmative consent, rather than whether the alleged victim demonstrated their lack of consent. (34)

In Commonwealth v. Paige, the SJC firmly rejected its reasoning in Scesny, concluding jurors may infer lack of consent where the evidence shows that the defendant severely injured and killed the victim proximate to having sexual intercourse with them, even where consent remains a logical possibility. (35) Additionally, the SJC clarified that evidence of prostitution, which was lacking here but strongly supported the Scesny holding, does not make it any more likely that the alleged victim consented to sexual intercourse--in fact, prostitutes may be more frequently raped than other individuals. (36) Writing separately, Justice Cypher rejected Scesny more firmly and addressed the continuing epidemic of violence against women and historical common law sexism when it comes to sex-based offenses. (37) Justice Cypher explained that even if the traditional indicia of torn clothing or injured sex organs is lacking, courts must allow jurors to infer lack of consent if the defendant contemporaneously had sexual intercourse with, severely injured, and killed the victim, as the victim is effectively silenced from testifying about their unwillingness to engage in sexual intercourse. (38)

The SJC was correct in upholding Paige's conviction for first-degree felony murder with a predicate offense of aggravated rape, as the evidence sufficiently established that he forcibly compelled Brimage to submit to nonconsensual sexual intercourse and brutally murdered her as part of a single, continuous episode. (39) The evidence does not require piling "inference upon inference or conjecture and speculation" for a jury to infer that Brimage did not consent--even if it is still logically possible that Paige and Brimage had consensual sexual intercourse before he murdered her. (40) Paige and Brimage were strangers who had sexual intercourse at a dirty construction site soon after he forcefully insisted on giving her a ride nearby, and Paige brutally injured and strangled Brimage before she could even get up. (41) The additional surrounding circumstances, including that Paige's family worked at the construction site; that officers found Brimage with her shirts pulled up and bottoms around her ankles; that the murder weapon was left next to her body; and Paige's inconsistent statements and denial of having sexual intercourse with Brimage despite DNA evidence to the contrary, are sufficient to persuade a rational jury of Paige's guilt beyond a reasonable doubt. (42)

Although the SJC could have ended their discussion on the sufficiency of the evidence, it rightfully seized the opportunity to explicitly reject its reasoning in S ce s ny. (43) The Scesny court concluded that there was insufficient evidence to find the defendant guilty of aggravated rape by relying on misconceptions surrounding prostitutes' victimization and lack of traditional indicia suggesting the victim used the utmost resistance--even though ample evidence indicated a lack of consent. (44) While...