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Massachusetts Supreme Judicial Court Upholds Former State Trooper’s Sex Assault Conviction

The Massachusetts Supreme Judicial Court yesterday affirmed a former state trooper’s conviction for sexually assaulting a woman he met on a dating website.  The name of the case is Commonwealth v. Kennedy

In June of 2014, the defendant and the victim connected on a dating website.  They were both married but claimed to be separated from the respective spouses.  They began exchanging sexually explicit and flirtatious text messages and spoke on the phone at least once.  The defendant told the victim he was a state trooper.  The following month, they made plans to meet in person.  They chatted for about 10 minutes in a coffee shop parking lot and the defendant invited himself back to the victim’s apartment.  As the defendant walked into the apartment, he unzipped his pants, pulled out his penis, and said, “I want you to see what you’re doing to me.”  According to the victim, she immediately and repeatedly told him, “no.”  However, the defendant grabbed her wrist and forced her to touch his penis.  He then kissed the victim until she turned her head away and told him he needed to leave.  The defendant apologized, zipped up his pants, and asked if the victim was going to report him.  After he left, the victim texted several friends and described the assault.  The following morning, the victim called 911 and filed a police report.  The defendant was arrested and charged with one count each of: indecent assault and battery; indecent exposure; and assault and battery.  A Hampshire County superior court jury convicted the defendant and he appealed.

The defendant argued on appeal that the trial judge should have instructed the jury on the “mistake of fact” defense.  In some cases, if a jury concludes a defendant made a mistake that caused him to commit an act that would otherwise be a crime, the defendant is not criminally liable.  For example: a defendant who took property he reasonably believed was abandoned might not be guilty of larceny; and a defendant who reasonably believed a naked minor was 18 years old might not be guilty of possession of child pornography.  In this case, the defendant argued he was entitled to a mistake of fact defense on the issue of consent regarding the indecent assault and battery indictment.  An indecent assault and battery is committed when the defendant intentionally touches the victim in an indecent manner without her consent. The defendant here said he reasonably believed the victim wanted to touch his penis, and accordingly he should not have been convicted.  The Supreme Judicial Court agreed with the defendant that in an appropriate case, a mistake of fact jury instruction might be appropriate.  However, according to the Court, this was not the appropriate case because the victim clearly and unambiguously expressed her desire not to touch the defendant’s penis by telling him “no.”  The Court said in a case where a victim clearly and unambiguously tells a defendant to stop his sexually aggressive behavior, the defendant is not entitled to a mistake of fact jury instruction.

The SJC rejected the defendant’s remaining appellate arguments and affirmed his convictions.  According to media reports, the defendant was fired from the state police, required to register as a sex offender, and sentenced to serve six month in jail.

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