Tuesday, September 11, 2012

Consent is No Defense to Assault and Battery During Sexual Activity

The SJC reiterated last week, in Comm. v. Carey, that consent is not a defense to assault and battery with a dangerous weapon, even if it happens during consensual sexual activity. The defense had argued that the SJC case of Commonwealth v. Appleby, 380 Mass. 296 (1980), which held that consent was not a defense to assault and battery in a sadomasochistic encounter, was no longer valid in light of the Supreme Court case Lawrence v. Texas, 539 US 558 (2003), which held that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

The court disagreed, quoting Appleby: "The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another ...) does not prevent the State from protecting its citizens against physical harm."

For more on the issue of consent to violence during sex, see Hanna, Sex Is Not A Sport: Consent and Violence in Criminal Law, 42 B.C. L.Rev. 239, 261 (2001), or Bergelson, Consent to Harm, 28 Pace Law Review 683 (2007-2008). [Consider visiting one of our law libraries to download the HeinOnline App to view these on your iPad, or just request them for no charge from our document delivery service.]

But what happens if there is no assault and battery, but someone just gets hurt? The Appeals Court defined the standard of care required in sexual encounters in Doe v. Moe, 63 Mass. App. Ct. 516 (2005). In this case, one party was injured during consensual sexual intercourse, and sued the other. The court ruled, "While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct."