Challenge to constructive force instruction rejected

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The Appeals Court has affirmed a defendant’s rape conviction, rejecting his argument that the jury should have been instructed that constructive force is not determined solely by the alleged victim’s subjective state of mind or feelings of fear, but also that her fear must be objectively reasonable.

“The defendant contends that if the alleged victim’s fear is irrational or objectively unreasonable, then there was no force, actual or constructive. The defendant’s argument would add an element to the rape statute, G.L.c. 265, §22(b), which we decline to do,” Judge Vickie L. Henry wrote for the court.

“What is paramount is that the rape statute, G.L.c. 265, §22, does not require that the victim’s fear be objectively reasonable. … Accordingly, the statute protects all victims who submit out of fear or intimidation, even if a hypothetical reasonable person might not have been frightened under the same circumstances,” Henry added.

The 19-page decision is Commonwealth v. Hraiz, Lawyers Weekly No. 11-032-26.

Click here to read the full text of the opinion.