State high court reaffirms that consent is not defense in sexual violence

The Massachusetts Supreme Judicial Court today reaffirmed its position that consent is not a defense when sexual conduct turns violent.

The state’s highest court rejected a defense attorney’s bid for it to reshape state law under a 2003 US Supreme Court decision.

The Supreme Court, in the Lawrence v. Texas case, which struck down a Texas law banning gay sex, said that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

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The attorney for a Massachusetts man convicted of a vicious assault on a woman in 2007 argued before the Massachusetts court that the Supreme Court ruling meant the defendant should have been allowed to offer his claims of consent as a defense.

The Massachusetts court, in an opinion released today, said attorney James L. Sultan’s core argument was that the Lawrence case had set up “an absolute right of privacy in sexual affairs.”

But Sultan was “grasping” at the language in the Lawrence decision and had a “fundamental misunderstanding” and a “selective misreading” of the case, the court said, in rejecting his arguments.

The court reaffirmed its previous ruling in the 1980 Commonwealth v. Appleby case, where it found, “The fact that violence may be related to sexual activity ... does not prevent the State from protecting its citizens against physical harm.”

The 1980 ruling stated there was some “right to sexual privacy that citizens enjoy”—years ahead of the US Supreme Court, the Massachusetts court said.

But the 1980 ruling also stated that the right “would be outweighed in the constitutional balancing scheme by the State’s interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations,” the court said.

“Although we proceeded to set a boundary to this protected sphere of activity, we did not do so because of any societal disapproval of the underlying sexual conduct, but rather because the government has a legitimate interest in discouraging violent behavior between and against its citizens,” the court said.

The court also said it agreed with a Nebraska Supreme Court ruling that found that Lawrence had not established an absolute right of privacy in sexual conduct.

“As the Supreme Court of Nebraska explained ... the Court did no such thing,” the Massachusetts court said.

“We agree with this reading of Lawrence,” the court said in a unanimous ruling written by Justice Robert J. Cordy.

Sultan said this afternoon he continued to believe that “consenting adults should be permitted to do whatever they choose within the privacy of their own homes without certain sexual conduct being criminalized by the state.”

Without consent as a defense, his client had no defense, he said.

Sultan represented John Carey, who was convicted of invading a Hamilton woman’s home and attempting to strangle her in 2007, even as her 12-year-old son stabbed him in the back and grappled with him.

State Police later found hundreds of pictures on Carey’s home computer that were strangulation-related, as well as a video of a man strangling a woman, and a link to an article about a man who was convicted of strangling four women but won an appeal, the court said.

Carey “was convicted of armed home invasion, attempted murder by strangulation, assault and battery with a dangerous weapon, and assault and battery. He was not charged with a sexual act and it was not a sexual act turned violent. It was a violent and vicious attack of a woman in her home with her 12-year-old son as a witness,” Essex District Attorney Jonathan Blodgett’s office emphasized in a statement.

“The court rules that consent is not a defense in acts of violence. An individual cannot consent to be injured and a person cannot claim as a defense that they had the victim’s consent to break into their home and viciously attack them,” the statement said.