$425,000 Award; Reversal Of Rape Conviction

Intoxication and Consent in Rape Cases

Appellate court case where client was a Harvard University Graduate Dental Student accused of two counts of rape. He was convicted at his second trial while represented by other counsel. A number of issues were raised on appeal; the central issue related to intoxication and consent. The Commonwealth argued that the complainant was intoxicated and thus unable to consent. On appeal, Attorney Brad Bailey argued that the trial court’s instructions on the issue of intoxication and consent were inadequate and erroneous as a matter of law and pointed out that trial counsel had repeatedly requested that the judge give an instruction on level of intoxication when considering whether or not an intoxicated person is capable of consenting. Instead, the judge gave a confusing instruction lumping together intoxication with sleep, stupefaction, insensibility, and unconsciousness. Attorney Bailey argued that placing intoxication in the same context as states of insensibility had the potential to confusing the jury into believing that intoxicated persons cannot consent. The defendant was prejudiced because trial counsel relied upon a clearly signaled instruction that the trial court never gave and, as a result, conceded the central issue—intoxication—in his closing argument. The case is significant because it once and for all clarifies the issue of intoxication and consent in rape cases and suggests that the trial court is required to instruct juries in cases where the defense of consent is raised that if they find that the complaining witness was intoxicated, they must also decide whether the complaining witness’ level of intoxication was such that she was wholly insensible and/or incapable of consenting.

Result: Appeals Court reversed the conviction.

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