Commonwealth v. Gouveia
371 Mass. 566, 358 N.E.2d 1001 (1976)
 

BRAUCHER, J. The defendant appeals from convictions of rape and an unnatural act, and argues two assignments of error: (1) exclusion of evidence of prior sexual intercourse by the victim, and (2) denial of his motion for a mistrial after the prosecutor in his closing argument asserted that there was no evidence to refute the victim's testimony as to what happened when she and the defendant were alone together. We hold that there was no error in excluding evidence of prior sexual acts between the victim and a person other than the defendant.... We therefore affirm the convictions.

The case for the Commonwealth consisted almost entirely of the testimony of the victim, which we summarize. She was nineteen years old and lived and worked in Billerica. On the evening of Saturday, August 25, 1973, she drove her automobile to a bar in Lowell and had two or three drinks with friends and with a young man whom she met there and who invited her to a family birthday party. She drove him to the party, a few minutes away, arriving about 11:30 to 12 p.m., and found approximately thirty people there. About a half hour later, she felt sick and she and her escort went out and got into the back seat of her car. He passed out, she vomited, and she discovered that her wallet and car keys were missing. She got out of the car and spoke to others who said they would look for the car keys.

At this point the defendant, whom she did not know, suggested that she could lie down in his van, parked nearby, and she did so. She was there for about two hours, during which time several men looked in, and one made sexual advances which she repulsed. Finally, the defendant got into the van and committed the crimes charged. After ten or fifteen minutes the defendant "gave up''; she put her jeans back on; and she went back to her car, leaving her underwear in the van. She rolled up the windows and locked the doors of her car, and a woman came over and screamed at her. Others were standing around. Later the defendant came back, said the woman was going to beat her up, and offered to give her "a ride to get out of there.'' They got into the van, and he drove her to within a quarter of a mile of her home. He gave her the wrong name of the street where the party was, and he falsely said the van was not his. She noted the license number and wrote it down when she arrived home about 5:15 a.m.

About 7 or 7:30 a.m. she called a friend, and he drove her to Lowell to look for her car. The same morning, after searching without success, they went to the Lowell police department. She gave the police the license number of the van and learned the defendant's name. About a week later the police recovered her car, and her wallet was found in a mailbox.

The defendant stipulated that he was at the party with his van, and that he drove the victim home. The escort, six women, and the husband of one of them testified for the defendant. All the witnesses were related to the escort by blood or marriage and all but one testified that they had known the defendant for many years. He did not testify.

In September, 1975, the defendant was convicted of both rape and an unnatural act, and was sentenced to nine to twelve years for rape and to a lesser concurrent sentence for an unnatural act. An appeal to the Appellate Division of the Superior Court resulted in concurrent sentences of three to five years. The defendant appealed pursuant to G.L. c. 278, 33A-33G, and we allowed the parties' joint application for direct appellate review, which focused on the admissibility of evidence of prior sexual acts by a rape victim.

1. Evidence of prior sexual acts. The victim testified on direct examination that she was outside in the back seat of her car with her escort about two hours before the crimes took place. On cross-examination she said that she was talking to him, and that he kissed her and "attempted to make a pass'' at her, "and that was it.'' She denied having sexual intercourse with him, but the judge sustained an objection to the question and instructed the jury to disregard it. She denied that she was undressed.

Defense witnesses testified that the victim and her escort were in the back seat of her car, and that he passed out and was carried into the house. They testified that both the victim and her escort were completely undressed, and two of them testified to obscene behavior on her part. Several also testified that she got out of the car wholly or partly undressed and walked down the street. The judge excluded questions whether she and her escort engaged in sexual intercourse.

The defendant accepts our general rule that in a rape case, although evidence of a general reputation for unchastity may be admitted, evidence of instances of prior intercourse of the victim with persons other than the defendant is inadmissible. Commonwealth v. Gardner, 350 Mass. 664, 668, 216 N.E.2d 558 (1966), and cases cited. But he argues that the rule should be limited to cases where it is "justified on the ground that collateral questions relating to those specific events would prolong the trial and divert the attention of the trier of fact from the issues.'' Commonwealth v. McKay, 363 Mass. 220, 227, 294 N.E.2d 213, 218 (1973). Here, he says, the prior act was close in time and nature to the crimes charged, and it was therefore admissible ... to prove her consent....

On the issue of consent, we stand by the principle that "the victim's consent to intercourse with one man does not imply her consent in the case of another.'' Commonwealth v. McKay, supra, 363 Mass. at 227, 294 N.E.2d at 218. At least in the circumstances here, a prior consent close in time and place might negate rather than create such an implication of subsequent consent. We need hardly add that the defendant had no right to appeal to the jury on the basis that by her conduct the victim had forfeited any claim to protection from rape.

The defendant further complains that proof of the victim's "obscene and public actions, short of intercourse, ... strongly and erroneously implied to the jury that no such intercourse did occur,'' and that subsequent consent to intercourse with the defendant therefore seemed "most improbable.'' It is at least equally likely that the jury disbelieved the defense testimony, or that they thought, as we do, that prior consent was irrelevant to subsequent consent. In any event, the evidence of "obscene and public actions'' was all introduced by the defendant, and he is in no position to complain.

The defendant argues that if our rule excludes the "demonstrably relevant evidence'' offered in this case, "merely to protect the dignity of the witness,'' it denies the defendant his right to a fair trial and violates the United States Constitution. We have said enough to indicate that no relevant evidence was excluded. We do not regard the protection of the dignity of witnesses as illegitimate. See Commonwealth v. Bailey, 348 N.E.2d 746 (1976). But that is not the purpose of the rule here considered....

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The defense position was that the alleged victim had open sex with her escort, whom she had met for the first time that night, that she acted obscenely at the party, that she willingly accepted the defendant's invitation to lie down in the back of his van, that she consented to sex with the defendant, that she willingly accepted a ride home from the defendant, and that she claimed she was raped only when she could not find her car and needed to enlist the help of the police in finding it. The defendant's claim is that the alleged victim's sexual conduct with her escort was an integral part of the overall picture of what happened on that night--the res gestae.

Justice Braucher aggressively asserts that the exclusion of the victim's prior sexual acts is based entirely on relevance grounds. (See the last line of the opinion as edited.) This is the way in which the rape-victim shield law is framed, and provides a good opportunity for pointing out again that relevance is not an objective logical concept but rather depends very much on the point of view of the person making the relevance assessment. Do you agree with Justice Braucher? What if there were evidence offered that the alleged victim had had sexual intercourse with several others at the party who visited her in the back of the van? Would the relevance of the evidence be any greater?

 


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