## Facts

- Alvin Suliveres was indicted for rape under Mass. Gen. Laws ch. 265, § 22, based on an allegation that he had intercourse with his brother’s longtime girlfriend by impersonating his brother.
- The complainant and Suliveres’s brother were in a long-term relationship and shared a bedroom.
- One night, the complainant was asleep alone in that bedroom when Suliveres entered.
- The room was dark; the complainant awoke and assumed the person entering the bed was her boyfriend returning home.
- The complainant addressed the man by her boyfriend’s name; Suliveres did not correct her and proceeded to get into bed.
- Suliveres and the complainant had sexual intercourse while the complainant believed he was her boyfriend; she later testified she would not have consented had she known it was Suliveres.
- The Commonwealth did not claim Suliveres used physical force or threats; its theory was that consent obtained through identity deception should satisfy the rape statute.
- At trial, the judge denied Suliveres’s motion for a required finding of not guilty at the close of the Commonwealth’s case.
- The jury could not reach a verdict and the judge declared a mistrial.
- Suliveres moved to dismiss the indictment, arguing the evidence was legally insufficient and that a retrial would be barred; the motion was denied.
- A single justice of the Supreme Judicial Court reserved and reported the matter to the full court.

## Issues

1. Whether sexual intercourse obtained through deception about the defendant’s identity—without force or threats—satisfies the “by force and against [the victim’s] will” (or threat) elements of rape under G.L. c. 265, § 22.
2. Whether impersonation of a known sexual partner can be treated as “fraud in the factum” that either negates consent in a way that satisfies the rape statute or distinguishes prior precedent rejecting rape liability for fraud.
3. If the Commonwealth’s evidence was insufficient as a matter of law, whether the defendant was entitled to a required finding of not guilty and dismissal that would bar retrial after the mistrial.

## Decision

- The Supreme Judicial Court held that rape under G.L. c. 265, § 22 requires proof of compulsion by force and against the victim’s will, or compulsion by threat of bodily injury; fraud or deceit cannot supply the force element.
- The court reaffirmed *Commonwealth v. Goldenberg*’s rule that consent obtained through fraud or deceit does not constitute rape under § 22 absent force or threats.
- The court rejected the Commonwealth’s attempt to treat the identity deception here as a distinct fraud category that would satisfy the statutory force requirement.
- Viewing the evidence in the light most favorable to the Commonwealth, the court concluded there was no evidence of force or threats, only deception, so the evidence was legally insufficient to prove rape.
- The court ordered entry of a required finding of not guilty; because the evidence was insufficient, double-jeopardy principles barred a retrial on the rape indictment.

## Legal Principles

- Under G.L. c. 265, § 22, the Commonwealth must prove the defendant compelled the complainant to submit either (a) by force and against the complainant’s will, or (b) by threat of bodily injury.
- “By force” and “against the will” are separate elements; a showing that consent was ineffective does not by itself prove the force element.
- Fraud or deceit, including impersonation of a complainant’s boyfriend, does not constitute the statutory “force” required for rape under § 22.
- Longstanding judicial construction of a statute, left unchanged through later legislative amendments, supports keeping that construction rather than expanding criminal liability by judicial reinterpretation.
- After a mistrial, if the evidence at the first trial was insufficient as a matter of law, the defendant is entitled to a not-guilty finding and retrial is barred.

## Conclusion

The Supreme Judicial Court ruled that Massachusetts’s rape statute, G.L. c. 265, § 22, requires force or threats and does not cover intercourse where apparent consent was obtained solely through deception about identity; because the Commonwealth’s proof showed impersonation without force or threats, the defendant was entitled to a required finding of not guilty and the Commonwealth could not retry the rape charge.


Suliveres v. Commonwealth, 865 N.E.2d 1086, 449 Mass. 112 (2007)