Instruction 6.500, Criminal Model Jury Instructions for Use in the District Court

INDECENT ASSAULT AND BATTERY

G.L. c. 265, § 13H

The defendant is charged with indecent assault and battery.

To prove the defendant guilty of this offense, the Commonwealth

must prove three things beyond a reasonable doubt:

First: That the defendant committed an assault and battery on the

alleged victim. Assault and battery is the intentional touching of another

person, without legal justification or excuse.

Second: That the assault and battery was “indecent.”

and Third: That the alleged victim did not consent to the alleged

indecent assault and battery.

An indecent act is commonly understood as measured by common

understanding and practices. It is one that is fundamentally offensive to

contemporary standards of decency. An assault and battery may be

“indecent” if it involves touching portions of the anatomy commonly

thought private.

See Instruction 6.140 (Assault and Battery) for additional language defining assault and battery. If

the alleged victim was under the age of 14, see Instruction 6.520 (Indecent Assault and Battery on

a Child under 14).

“A touching is indecent when, judged by the normative standard of societal mores, it is violative of

social and behavioral expectations in a manner which [is] fundamentally offensive to contemporary

moral values. . . [and] which the common sense of society would regard as immodest, immoral and

improper.” Commonwealth v. Vasquez, 65 Mass. App. Ct. 305, 306 (2005) (internal quotations

omitted). “It has been held that the intentional, unjustified touching of private areas such as ‘the

breasts, abdomen, buttocks, thighs, and pubic area of a female’ constitutes an indecent assault and

battery.” Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184-185 (1991) (quoting Commonwealth

v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982)).

The above list of private anatomical parts and areas, however, “has never been declared to be

exhaustive. . . . [and may] include other parts of the body — whether clothed or unclothed — that,

if intentionally and unjustifiably touched, would violate our contemporary views of personal integrity

and privacy.” Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 (2002) (internal quotations

omitted).

SUPPLEMENTAL INSTRUCTION

Where victim touches the defendant’s private part

An indecent act includes those acts where the defendant

directs or commands the alleged victim to touch a private part of

the defendant (or another person).

Where the defendant touches the victim with his or her private part

An indecent act includes those acts where a defendant

touches the alleged victim with his (her) own private part (or that

of another person).

Where capacity of victim over 14 to consent is at issue.

I have instructed you that one element of this offense is

that [alleged victim] did not consent to the touching.

In some cases, you may also have to consider a related

question: whether the alleged victim was able to consent. If a

person is so impaired because of the consumption of drugs or

alcohol or for some other reason (for example, sleep,

unconsciousness, intellectual disability, or physical

helplessness) that he (she) is incapable of consenting, then it

automatically follows that he (she) did not consent.

In such cases, the Commonwealth may prove that

[alleged victim] did not consent by proving beyond a reasonable

doubt:

First, that [alleged victim] was so impaired because of

(consumption of alcohol or drugs) (intellectual disability) (injury)

(physical helplessness) (sleep) ( [other reason] ) that he (she) was

incapable of freely giving consent; and

Second, that the defendant knew, or reasonably should

have known, that [alleged victim’s] condition rendered him (her)

incapable of consenting.

It is a question of fact in each case as to whether a

particular person was or was not able to consent on a particular

occasion. How do you determine this?

Where drugs or alcohol were involved: (Consumption or intoxication

with alcohol or drugs, by itself, does not necessarily mean that

an individual is incapable of deciding whether to consent. It is a

matter of common knowledge that there are many levels of

intoxication. The question is whether, as a result of a person’s

consumption of drugs, alcohol, or both, that person was unable

to give or to refuse consent.)

If intoxication is not involved: (The crucial factors are often the

person’s intelligence or physical condition, but you may also

consider other factors, such as the person’s maturity and

experience. The question comes down to whether the person

was intelligent and aware enough to understand and evaluate

what was happening, and to make a decision whether or not to

consent based on that understanding.)

If the Commonwealth has proved beyond a reasonable

doubt that [alleged victim] did not have enough understanding

and awareness on that occasion to be able to consent, and that

the defendant knew or reasonably should have known this, then

the Commonwealth has proved that he (she) did not consent.

If the Commonwealth has failed to prove beyond a

reasonable doubt that [alleged victim] was incapable of

consenting and that the defendant knew or reasonably should

have known this, then the Commonwealth must prove beyond a

reasonable doubt that [alleged victim] did not in fact give consent.

In a case where the complainant’s capacity to consent is at issue, the judge should

instruct that if “because of the consumption of drugs or alcohol or for some other

reason (for example, sleep, unconsciousness, mental retardation, or helplessness),

a person is so impaired as to be incapable of consenting to sexual intercourse, then

intercourse occurring during such incapacity is without that person’s consent. . . .

This formulation. . . is intended to communicate to the jury that intoxication must be

extreme before it can render a complainant incapable of consenting.” However, the

judge should not suggest that the alleged victim must be “wholly insensible” or

“unconscious or nearly so. . . . The issue is whether, as a result of such intoxication,

the complainant was unable to give or refuse consent.” Commonwealth v. Blache,

450 Mass. 583, 592 & n.14, 595 n.19 (2008).

Blache also held that a defendant’s reasonable mistake as to the complainant’s

ability to consent is a defense to a rape charge that is premised on the complainant’s

inability to consent. When a complainant is able to give or refuse consent, mistake

about consent is not a defense because the need to prove the use or threat of force

should negate any such mistake. But where the complainant is incapable of

consenting, the Commonwealth need only prove the force necessary for penetration,

and this increases the possibility of a reasonable mistake about consent. In rape

cases tried after the Blache rescript (February 21, 2008) that are premised on

inability to consent, the Commonwealth must prove that the defendant knew or

reasonably should have known that the complainant was incapable of consenting.

Id., 450 Mass. at 592-597.

This supplemental instruction assumes that Blache is to be applied also in indecent

assault and battery cases, and incorporates the contents of the suggested model

instruction set out in Blache, 450 Mass. at 595 n.19.