Criminal – Rape – Force clause

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Where a single justice ruled that rape qualifies as a predicate offense for pretrial detention under the force clause of the pretrial detention statute, that ruling should be upheld because rape is a crime of physical violence requiring unwanted forceful penetration of another person.

“General Laws 276, §58A (1) (§58A or force clause), permits the pretrial detention of a defendant charged with a felony offense that has as an element ‘the use, attempted use or threatened use of physical force against the person of another.’ The question in this case is whether rape, G.L.c. 265, §22 (§22), qualifies as a predicate offense under the force clause of the pretrial detention statute. Because rape is a crime of physical violence requiring unwanted forceful penetration of another person, we hold that it does qualify. …

“… Relying on language in Scione v. Commonwealth, 481 Mass. 225, 229 (2019), the single justice reasoned that rape qualifies as a predicate offense for pretrial detention under the force clause because an element of rape includes the use or threatened use of force. …

“Applying the categorical approach, we must determine whether it is possible to commit the offense of rape without having used, attempted to use, or threatened ‘physical force.’ …

“With this context in mind, we now must determine whether the offense of forcible rape, G.L.c. 265, §22, includes the use, attempted use, or threatened use of ‘physical force’ as that term is used in §58A. We conclude that unwanted sexual intercourse compelled by force renders rape an inherently physical violation of another person and, therefore, an offense with ‘physical force’ as both core element and end result. G.L.c. 276, §58A. …

“Applying the categorical approach to the rape of a terrified or incapacitated victim, the ‘most innocent conduct’ criminalized by §22 still entails forceful penetration against the will of the victim. …

“We reject the notion of a nonviolent forcible rape. … Although we have extended the definition of rape to include situations involving constructive force, we did not in that process reduce unwanted penetration of another’s vagina, anus, or mouth into incidental offensive contact not amounting to a forceful crime. Put differently, the physical contact required to constitute rape cannot be equated to ‘tickling,’ ‘spitting,’ or ‘a tap on the shoulder.’ … For this reason, the language of §22 describes ‘not mere crimes of physical contact, but, rather, crime[s] of violence,’ as required by the force clause of §58A (quotation omitted). … To decide otherwise and determine that rape is not an offense with physical force at its heart would be to fundamentally misunderstand the nature of the violation. Accordingly, we affirm the judgment of the single justice.”

Campbell v. Commonwealth (Lawyers Weekly No. 10-113-24) (23 pages) (Gaziano, J.) The case was heard by Wendlandt, J., sitting as single justice. Patrick Levin for the petitioner; Sarah Montgomery Lewis (Lynn Feigenbaum also present) for the commonwealth (Docket No. SJC-13504) (Oct. 8, 2024).

Click here to read the full text of the opinion.