## Facts

- Martin Urban was indicted on two counts of rape under Mass. Gen. Laws ch. 265, § 22(b), arising from a single sexual encounter with the same complainant.
- The complainant spent an evening drinking alcohol with friends, including Urban, and became significantly intoxicated.
- Sexual intercourse occurred between Urban and the complainant.
- The Commonwealth’s theory was that the complainant’s intoxication rendered her incapable of consenting.
- Urban contended the complainant was intoxicated but still aware, capable of voluntary consent, and did consent.
- Over Urban’s objection, the judge instructed the jury that intercourse with a person who is “asleep, intoxicated, stupefied, unconscious, or otherwise physically helpless” is “deemed to take place without that person’s consent.”
- The jury convicted Urban on both indictments.

## Issues

1. Whether the jury instruction improperly stated that an “intoxicated” person is, as a matter of law, incapable of consenting to sexual intercourse.
2. Whether the instruction removed from the jury the factual question of capacity to consent and thereby reduced the Commonwealth’s burden of proof on lack of consent or incapacity.
3. Whether any instructional error was prejudicial given that capacity to consent was the central disputed issue at trial.

## Decision

- The Massachusetts Appeals Court reversed the convictions and ordered a new trial.
- The court held the instruction was erroneous because it could be understood to mean that intoxication alone establishes non-consent as a matter of law.
- The court concluded the error was prejudicial because it affected the central contested issue and created a substantial risk the jury convicted on a legally insufficient theory.

## Legal Principles

- Rape under Mass. Gen. Laws ch. 265, § 22(b) requires proof beyond a reasonable doubt of non-consent or legal incapacity to consent, and that the defendant knew or reasonably should have known of the lack of consent or incapacity.
- A complainant may be incapable of consenting when “unconscious, asleep, or otherwise physically helpless,” in which case intercourse is non-consensual regardless of apparent acquiescence.
- Intoxication is not per se incapacity; the degree of impairment and its effect on the ability to give meaningful consent is a jury question.
- Jury instructions may not transform intoxication into a conclusive presumption of non-consent or otherwise relieve the Commonwealth of its burden to prove incapacity or lack of consent beyond a reasonable doubt.
- Where the primary dispute is whether intoxication rose to the level of incapacity, an instruction implying automatic incapacity from intoxication is ordinarily prejudicial.

## Conclusion

The Appeals Court held that a charge deeming intercourse with an “intoxicated” person non-consensual risked establishing a per se rule of incapacity, improperly withdrawing the factual capacity inquiry from the jury and lowering the Commonwealth’s burden; because the case turned on whether intoxication rendered the complainant unable to consent, the error required reversal and a new trial.


Commonwealth v. Urban, 64 Mass. App. Ct. 805, 853 N.E.2d 434 (2006)