Criminal – Consent – Indecent assault and battery

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Where a jury convicted a defendant of indecent assault and battery, that conviction should be upheld despite the defendant’s contention that the evidence was insufficient to prove beyond a reasonable doubt that the victim, having agreed to allow the defendant to give her a tattoo on her front and outer thigh, did not consent to the defendant touching her pubic area and inner thigh of her other leg.

“Following a trial in the District Court, a jury convicted the defendant, Jose Benevides, of indecent assault and battery, G.L.c. 265, §13H. On appeal, the defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that the victim, having agreed to allow the defendant to give her a tattoo on her front and outer thigh, did not consent to his touching her pubic area and inner thigh of the other leg. Because a rational trier of fact could have inferred that the victim consented only to those touchings of her body that were necessary and appropriate for application of the tattoo, we conclude that the judge did not err in denying the defendant’s motions for a required finding of not guilty. Accordingly, we affirm. …

“The victim testified that she made an appointment with the defendant to get a new tattoo. He had previously given her three tattoos without incident; they had no other interaction or relationship. This time, the victim planned to get a five-inch long tattoo on the front and outside part of her right thigh. After the defendant placed the stencil on her thigh and began applying ink, he put his ring and pinky fingers directly on the victim’s pubic area. …

“… Here, the defendant committed two allegedly indecent touchings: the placement of his fingers on the victim’s pubic area as he started to apply ink, and the rubbing of her inner thigh after he spotted extra ink near her pubic area. …

“… Like a patient undergoing a medical procedure, the victim here consented to a specific procedure by the defendant: the placement of a tattoo on her front and outer right thigh. … The victim did not consent to touchings of her body that were unnecessary or inappropriate for the agreed-upon tattoo procedure. In particular, she did not give the defendant permission to touch her pubic area or inner thigh, much less in a sexualized manner.

“We have ‘held that the intentional, unjustified touching of private areas such as “the breasts, abdomen, buttocks, thighs, and pubic area of a female”’ may constitute an indecent assault and battery. … Contrary to the defendant’s argument, however, it hardly follows that by allowing the defendant to touch her front and outer thigh for the purpose of applying a tattoo, the victim also consented to his touching her pubic area and inner thigh for other purposes. Rather, the jury was entitled to infer that, in agreeing to have the defendant give her a tattoo, the victim consented to ‘certain touchings which are part of the’ tattoo procedure but did not also consent to touchings ‘outside the scope of what is appropriate’ for it. … On this basis alone, the jury could have found beyond a reasonable doubt that the victim did not consent to the touching of her pubic area and inner thigh.

“For similar reasons, we disagree with the defendant’s contention that the Commonwealth had to prove that the victim ‘withdrew her consent’ during the appointment. Withdrawal is not an issue if the victim did not initially consent to the sexual contact. … Because the jury could have reasonably inferred that the victim never consented to any touchings by the defendant unnecessary to the application of the requested tattoo, the Commonwealth did not have to prove that she withdrew such consent before such touchings occurred. Nor must we, as the defendant contends, assess the victim’s statements and conduct to determine whether she ‘reasonably communicated the withdrawal of consent in such a manner that a reasonable person would have known that consent had been withdrawn.’ …

“… Accordingly, the judge did not err in denying the defendant’s motions for a required finding of not guilty.

Judgment affirmed.”

Commonwealth v. Benevides (Lawyers Weekly No. 11-033-26) (10 pages) (Toone, J.) The case was tried before Christopher P. LoConto, J., in District Court. Eric W. Ruben on appeal for the defendant; Jennifer Rose for the commonwealth (Docket No. 25-P-668) (April 28, 2026).

Click here to read the full text of the opinion.