## Facts

- Three physicians and a registered nurse worked at the same Boston hospital; one physician co-hosted a staff party on September 5, 1980, where the nurse met two of the physicians for the first time.
- The nurse testified that earlier in the evening the physicians forced her into a bathroom; she was scared and upset and was not a willing participant.
- As the nurse tried to leave the party, the physicians took her from the apartment over her verbal protests and drove her in one physician’s car to a house in Rockport, Massachusetts; she did not physically resist but repeatedly asked to be taken home.
- On arrival, one physician carried her into the house after she again asked to go home; she was disrobed and each physician had intercourse with her in turn.
- The nurse testified she was frightened, felt physically unable to fight, and verbally protested; the physicians testified the sexual activity was consensual and that she willingly participated.
- A jury acquitted the physicians of kidnapping and convicted them of the lesser-included offense of rape (without aggravation) on three rape indictments each.

## Issues

1. Whether the evidence was sufficient to prove rape where the complainant did not physically resist and had opportunities to leave.
2. Whether the trial judge erred in refusing defendants’ requested jury instructions framed around “good faith” or “actual knowledge” of non-consent.
3. Whether the judge erred in admitting fresh-complaint evidence and excluding other statements attributed to the complainant.
4. Whether alleged prosecutorial misconduct required a mistrial.
5. Whether acquittals on kidnapping and convictions on rape were legally “impossible” or required reversal as inconsistent.
6. Whether all three rape convictions per defendant could stand or whether only one conviction per defendant was sustainable on the proof.

## Decision

- The Supreme Judicial Court affirmed the judgments in part and reversed in part.
- The court held the evidence was sufficient to permit findings of non-consent and intercourse by force or threat of force, despite lack of physical resistance.
- The court upheld denial of mistrial motions, concluding the challenged prosecutorial remarks did not require a new trial in context.
- The court upheld admission of fresh-complaint testimony and the related evidentiary rulings challenged on appeal.
- The court rejected the claim that the kidnapping acquittals made the rape convictions legally impossible; each verdict could stand if supported by evidence of its own elements.
- The court affirmed one rape conviction for each defendant and vacated the other two rape convictions for each defendant.

## Legal Principles

- In reviewing sufficiency claims, evidence is assessed in the light most favorable to the Commonwealth; credibility disputes are for the jury.
- Proof of rape may rest on evidence of verbal protest, fear, and coercive circumstances; lack of physical resistance or failure to escape does not, by itself, require an acquittal.
- A defendant is not entitled to a preferred form of jury instruction if the charge as a whole correctly states the law and adequately covers the issues raised by the evidence.
- A requested “good faith belief in consent” instruction may be refused when framed as requiring proof of defendants’ actual knowledge of non-consent rather than a properly presented mistake-of-fact theory; the court declined to decide any broader rule on mistake of fact as to consent on this record.
- Fresh-complaint evidence is admissible under Massachusetts doctrine to corroborate the complainant, subject to trial-court control over unfair prejudice.
- Alleged inconsistency between acquittal on one count and conviction on another does not mandate reversal when each verdict is independently supportable under its elements.

## Conclusion

The court held that the jury could find rape based on the complainant’s verbal resistance and fear even without physical resistance, upheld the trial court’s evidentiary and mistrial rulings, rejected an “impossible verdict” theory based on the kidnapping acquittals, and affirmed one rape conviction per defendant while vacating the remaining rape convictions as not separately sustainable on the proof.


Commonwealth v. Sherry, 386 Mass. 682, 437 N.E.2d 224 (1982)