390 Mass. 480 (1983), Commonwealth v. Burke

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation390 Mass. 480,457 N.E.2d 622
Docket Number.
PartiesCOMMONWEALTH v. Daniel E. BURKE.
Date22 November 1983

Page 480

390 Mass. 480 (1983)

457 N.E.2d 622

COMMONWEALTH

v.

Daniel E. BURKE.

Supreme Judicial Court of Massachusetts, Middlesex.

November 22, 1983

Argued Sept. 16, 1983.

[457 N.E.2d 623] Jonathan Shapiro, Boston (Anne B. Goldstein, Boston, with him), for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant is charged with committing an indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B. After a finding of guilty in a jury-waived trial, the defendant appealed to a jury of six session of the District Court for a trial de novo. See G.L. c. 278, § 18. Prior to trial to a jury of six, the Commonwealth filed a motion to exclude evidence of consent on the

Page 481

part of the victim. 1 The judge of the District Court found that the case presented novel questions of law regarding the materiality of evidence of consent in a prosecution under G.L. c. 265, § 13B, and reported four questions to the Appeals Court. We allowed the defendant's application for direct appellate review.

The reported questions are as follows: "(1) Is lack of consent an element of the offense of indecent assault and battery on a child under the age of fourteen years proscribed by M.G.L. c. 265, Sec. 13B, as [appearing in] St.1980, c. 459, Sec. 4? (2) Is consent a defense to the offense of indecent assault and battery on a child under the age of fourteen years proscribed by M.G.L. c. 265, Sec. 13B, as [appearing in] St.1980, c. 459, Sec. 4? (3) If questions one and two are answered 'No' and there being a question in the case as to whether or not any physical contact or touching was indecent, is lack of consent an element of the lesser-included offense of assault and battery proscribed by M.G.L. c. 265, Sec. 13A? (4) If questions one, two and three are answered 'No' and there being a question in the case as to whether or not any physical contact or touching was indecent, is consent a defense to the lesser-included offense of assault and battery proscribed by M.G.L. c. 265, Sec. 13A?"

Our analysis demonstrates, by recourse to the common law, that a physically harmful touching is a battery, and consent is immaterial. However, a nonharmful touching is a battery only if there is no consent. In a prosecution for nonharmful battery, lack of consent is an element of the Commonwealth's case, and the Commonwealth bears the burdens of production and persuasion. Because the statute at issue established the crime of indecent "assault and battery" on a child under the age of fourteen, we presume that the Legislature intended to incorporate the common law [457 N.E.2d 624] definition

Page 482

of assault and battery. It follows that lack of consent is an element of the crime of indecent assault and battery, and the Commonwealth has the burdens of production and persuasion, unless this conclusion is precluded by the application of an "age of consent." We have never established a common law age of consent for assault and battery, and we decline to do so now. Nor do we conclude that an age of consent was established by the language of the statute which created the crime of indecent assault and battery on a child under fourteen. The capacity to consent to sexual touching, short of intercourse or attempted intercourse, is an issue of fact, and nonconsent is an element of the crime.

Assault and Battery.

Because our discussion of ordinary assault and battery lays the groundwork for our analysis of indecent assault and battery, we begin by addressing the issues raised by questions three and four. The basic problem is one of materiality of evidence; its resolution depends upon whether consent is at issue in a prosecution for assault and battery. The subsidiary problem is one of burden of proof, that is, assuming that consent is at issue, whether lack of consent is an element of the offense or consent is a defense thereto.

Assault and battery is a common law crime now set forth in G.L. c. 265, § 13A. An assault is an offer or attempt to do a battery. See Commonwealth v. Shaffer, 367 Mass. 508, 515, 326 N.E.2d 880 (1975). Every battery includes an assault. Commonwealth v. Stratton, 114 Mass. 303 (1873). Hence we need only consider the elements of criminal battery.

The law of criminal battery protects society's interest in ensuring that its members are free from harmful and offensive touchings. Because there are harmful batteries and offensive batteries, there is a bifurcation in the law of battery. Any touching "with such violence that bodily harm is likely to result" is a battery, and consent thereto is immaterial. Commonwealth v. Farrell, 322 Mass. 606, 620, 78 N.E.2d 697 (1948). See Commonwealth v. Collberg, 119 Mass. 350 (1876). Consent is likewise immaterial to a charge of assault and battery by means of a dangerous weapon, which necessarily entails

Page 483

a risk of bodily harm. Commonwealth v. Appleby, 380 Mass. 296, 308-311, 402 N.E.2d 1051 (1980). See Commonwealth v. Pierce, 138 Mass. 165, 180 (1884). In short, a physically harmful touching is so regardless of consent. But an offensive touching is so only because of lack of consent. The affront to the victim's personal integrity is what makes the touching offensive. Cf. Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 154, 439 N.E.2d 240 (1982), quoting Pratt v. Davis, 118 Ill.App. 161, 166 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906). A consensual, offensive touching is a contradiction in terms. Hence consent is always at issue, and evidence thereof is material, when the alleged battery is not of the physically harmful type.

We turn now to the question whether nonconsent is an element of the offense of assault and battery or consent is a defense thereto. An element is a fact that must be proved by the prosecution in order to sustain a conviction, that is, a fact of which the Commonwealth has both the burden of producing some evidence and the burden of persuading the trier of fact beyond a reasonable doubt. See Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977). To ascertain the elements of a crime we ordinarily look to the statutory language. See, e.g., First Nat'l Bank v. Attorney Gen., 371 Mass. 773, 794-795, 359 N.E.2d 1262 (1977), rev'd, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). See also Patterson v. New York, 432 U.S. 197, 205-206, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977). But G.L. c. 265, § 13A, does not define assault and battery; it merely specifies penalties. Hence we must decide the question as a matter of common law. Commonwealth v. Slaney, 345 Mass. 135, 138, 185 N.E.2d 919 (1962).

As we have stated above, it is the nonconsensual imposition upon one's person that makes a touching offensive and it [457 N.E.2d 625] is the offensiveness that makes the touching a battery. We hold that, in a prosecution for nonharmful battery, lack of consent is an element of the Commonwealth's case. Cf. Commonwealth v. Chretien, 383 Mass. 123, ---, Mass.Adv.Sh. (1981) 661, 673, 417 N.E.2d 1203 (nonconsent is an element of rape). Stated another way, in any prosecution for battery the Commonwealth must prove one of the following: (1) that the touching was physically harmful; (2) that the touching was potentially physically

Page 484

harmful; or (3) that the touching was nonconsensual. Thus, on the issue of consent to a nonharmful touching, the Commonwealth bears the burdens of production and persuasion.

In order to give consent a person must, obviously, have the capacity to do so. Thus, the Commonwealth can meet its burden of production, on the issue of consent, by introducing evidence of the alleged victim's lack of capacity to consent. The age of a very young victim of an alleged battery is such evidence. But we decline to establish an "age of consent" below...

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