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Massachusetts Appeals Court Affirms Former Salem Cop’s Conviction for Indecent Assault and Battery on a Detainee

The Massachusetts Appeals Court today upheld a former Salem police officer’s conviction for sexually assaulting a man who was in protective custody at the police station.  The name of the case is Commonwealth v. Butler.

During Halloween night of 2016, the victim, who was in his late twenties, was visiting Salem with his sister and her boyfriend.  He became extremely drunk after drinking six shots of alcohol and his sister’s boyfriend called the police after he flooded the bathroom in his hotel room.  The responding officer observed the victim to have slurred speech and he was unable to keep his balance.  The victim, who was naked when the officer arrived, put on a pair of wet jeans and was taken into protective custody and driven to the police station, arriving at approximately 3:30 a.m.  An officer placed the victim in a cell and told him he would be released after he slept for a few hours.  The victim took off his wet pants and was naked, and an officer later gave him a hospital gown.

At around 7 a.m., the defendant, who was on duty and in uniform, stopped by the victim’s cell and engaged him in conversation.  The defendant left, but returned half an hour later and let himself into the victim’s cell, where he and the victim began picking up toilet paper that had been strewn about.  The defendant offered to let the victim leave his cell to call his mother.  When the victim stood up, the defendant took away his hospital gown and began making comments about his penis.  After the victim used the phone, the defendant gave him a blanket and escorted him back to his cell.  About 45 minutes later, the defendant returned and again allowed the victim to enter the booking area to use the phone.  As the victim was using the phone, the defendant put his arm around the victim’s waist, and eventually began massaging his penis.  The defendant asked, “is this okay?” and the victim answered “yes.”  The victim testified that he was terrified of what would happen if he did not consent.  Video surveillance showed the defendant touching the victim’s penis for two minutes while the victim spoke to his sister on the phone.  After the victim hung up, he agreed to go to a broom closet with the defendant, and the defendant performed oral sex on him.  After more than eight minutes, the victim told the defendant to stop and the defendant brought him back to his cell.  The victim’s sister picked him up from the station shortly thereafter.  The defendant was charged with rape and indecent assault and battery.  The jury found him not guilty of rape, but convicted him of indecent assault and battery.  The judge sentenced the defendant to serve between three and a half and five years in state prison.

The defendant’s primary appellate argument involved whether he was entitled to a “mistake of fact” jury instruction.  The instruction basically states that if the defendant reasonably (but mistakenly) believed the victim consented to the touching, he could not be found guilty.  The Appeals Court wrote that this type of defense considers the defendant’s state of mind from both an objective and subjective viewpoint.  In other words, what did the defendant actually believe and what would a reasonable person in the defendant’s position believe?  In this case, the Court concluded that even if the defendant subjectively believed the victim had consented to the touching, such a belief would not be objectively reasonable.  The defendant, who was an experienced cop, should have known the defendant was highly intoxicated because he was in protective custody.  The power dynamic was entirely in favor of the defendant, who was responsible for the victim’s well being and would determine when the victim would be released from custody.  The Court also noted that when a person is an inmate at a jail, a guard who has sex with the inmate may not use consent as a defense.  The relationship between the defendant and the victim closely mirror that of a jail guard and inmate.  Therefore, because it was not objectively reasonable for the defendant to believe the victim consented to the touching, the trial judge correctly declined to instruct the jury on a potential mistake of fact.

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