Com. v. Chretien

• Decision Date: 09 March 1981
• Citation: 383 Mass. 123,417 N.E.2d 1203
• Parties: COMMONWEALTH v. James K. CHRETIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1203

417 N.E.2d 1203

383 Mass. 123

COMMONWEALTH v. James K. CHRETIEN.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 2, 1980.

Decided March 9, 1981.

Joel R. Labell, Lawrence (Ralph A. Barbagallo, Jr., Lawrence, with him), for defendant.

Diane M. Kottmyer, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant was tried before a jury in the Superior Court and convicted of rape, and breaking and entering a dwelling house in the nighttime with intent to commit a felony and assaulting a person lawfully therein. He was sentenced to from three to five years incarceration at the Massachusetts Correctional Institution at Walpole and to three years probation on and after release. He appealed to the Appeals Court, and we transferred the appeal here on our own motion.

The defendant contends that the trial judge erroneously ruled that the fact that the victim was the defendant's wife was no defense to a charge of rape under G.L. c. 265, § 22, as amended by St. 1974, c. 474, § 1. Further, he claims that it was erroneous for the judge (1) to decline to examine prospective jurors as to whether they were affiliated with organizations involved in issues of sexual equality, (2) to admit evidence that the victim was the plaintiff in a divorce action between the victim and the defendant in which a judgment nisi was obtained, (3) to exclude evidence that the victim was taking oral contraceptives at the time of the alleged rape, and (4) to refuse to permit defense counsel to inquire of the victim in the presence of the jury as to prior sexual conduct.

We find no error and therefore affirm the convictions. We conclude, that under the statutes in effect at the time of the alleged offenses, the fact that the victim was the spouse of the defendant was no bar to a conviction of rape. The defendant further argues that the statutes were so unclear on the issue of spousal exclusion that our construction should be applied prospectively only. On this issue, we conclude that the defendant had fair warning of the criminality of his conduct in that, under the common law, a man could be convicted of rape of his wife where, as in this case, a judgment nisi of divorce had been entered before the act of forced intercourse.

There was evidence from which the jury could have concluded the following. The defendant and his wife (the victim) were married on October 13, 1968. On May 4, 1978, the victim separated from the defendant and thereafter instituted divorce proceedings. A judgment nisi was granted to the victim on October 10, 1978. Under G.L. c. 208, § 21, the judgment was to become final on April 10, 1979. The victim did not reside with the defendant at any time after May 5, 1978.

The victim on various nights received frequent telephone calls from the defendant between 2 and 3 A.M. Several days prior to the alleged rape, he called her and stated that he had earlier driven to her house because "he had intentions for breaking into (her) house, and he had controlled himself." He then drove by her house to demonstrate that he was "serious." During the evening of February 7, 1979, the victim was home alone with her two children. She put them to bed at approximately 9 P.M. and thereafter went to bed after locking the doors to her apartment. She was awakened by a telephone call from the defendant at approximately 2 A.M. on February 8; after a brief conversation, she went back to sleep. She was awakened at approximately 3:15 A.M. by the defendant's banging at the back door. She ran down the front stairs to the second floor landing in order to seek help from the neighbors who lived on that floor. The defendant, having gained entrance to her apartment by breaking the locks on the kitchen door, followed her down the stairs. A struggle ensued following which the defendant pulled her upstairs by the neck after the wooden banister she was holding onto broke.

The neighbors, in response to the victim's screams, called the police, who arrived and were admitted by a neighbor and the couple's nine-year old child. The officers observed that the victim was crying, shaking and upset, and had red finger marks on the back of her neck. The police officers ascertained that the defendant lived elsewhere, removed him from the apartment, and watched him drive off.

The defendant telephoned shortly thereafter and the victim hung up on him. She then telephoned a friend. In the course of this telephone conversation she looked up and saw the defendant in her bedroom doorway. She screamed words to the effect, "My God, he's back. Call the police." Her friend then called the police. The victim attempted to escape but was trapped by the defendant at the doorway. He told the victim to "be quiet or he'd kill (her)" and told her to remove her clothes. He then pushed her on the bed and forced her to have sexual intercourse with him. She stated at trial that she did not resist because she was afraid that he would hurt her and because she did not want the children to come in and see what was happening.

Immediately following this the defendant, apparently observing the lights of a police cruiser, stated "hide me" and ran into the children's room. The police officer found the defendant hiding in the upper bunk in the children's room and placed him in protective custody. They searched for his truck and subsequently found it parked behind a gasoline station some distance away and hidden from view of the street.

That morning, several hours after the incident, the victim telephoned her sister and stated that the defendant had broken into her apartment and forced her to have sexual intercourse with him. The same morning the victim went to a hospital emergency room; a doctor observed multiple contusions and abrasions to her body. Other people observed bruises on her face, neck and arm. A neighbor noticed the broken locks on her kitchen door as well as the broken banister. Subsequent analysis of vaginal samples collected from the victim that morning revealed the presence of semen and sperm. The next day, February 9, 1979, the victim went to the Haverhill District Court and obtained criminal complaints against the defendant.

1. The Indictment for Rape.

At common law, rape was defined as "the carnal knowledge of a woman forcibly and against her will." 4 W. Blackstone, Commentaries 210 (1778). The earliest statutory prohibition of rape in the laws of the Commonwealth appeared in 1649: "If any man shall ravish any maid, or single woman, committing carnal copulation with her by force, against her own will ... he shall be punished either with death or with some other grievous punishment according to circumstances ...." The Charters and General Laws of the Colony and Provence of Massachusetts Bay, c. 18, § 15 (1814). The language of this early statute appears to include a reflection of the common law principle that a man cannot, as a matter of law, rape his wife. "(T)he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent an (sic ) contract the wife hath given up herself in this kind unto her husband, which she cannot retract.... (I)n marriage she hath given up her body to her husband ...." 1 Hale, Pleas of the Crown 628 (1800). ¹ In addition to this contractual analysis, the spousal exclusion is sometimes seen as a derivation of the ancient definition of rape as "unlawful" carnal knowledge of a woman by a man without her consent: intercourse between husband and wife is not unlawful; therefore, it is reasoned, neither spouse may be prosecuted for what would otherwise be rape. R. Perkins, Criminal Law 156 and n.40 (2d ed. 1969). The irrevocable consent concept as explained by Hale and the concept of rape as limited to "unlawful" carnal knowledge have both been criticized. "Neither of these rationalizations is entirely satisfactory. The former is essentially fictive, for there is no reason why agreement to enter a relation of intimacy necessarily means consent to intercourse on demand. The latter explanation simply begs the question." Model Penal Code, § 213.1, at 343, Comment (1980). It is generally thought, though, that the basis of the spousal exclusion probably lies in the ancient concept of the wife as a chattel. Id. See State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981). Note, the Marital Rape Exemption, 52 N.Y.U.L.Rev. 306, 307 (1977). See also Barry, Spousal Rape: The Uncommon Law, 66 A.B.A.J. 1088 (Sept.1980); Cavanagh, "A Little Dearer than his Horse": Legal Stereotypes and the Feminine Personality, 6 Harv.C.R.-C.L.L.Rev. 260 (1971).

We have never been directly presented with the question whether any rape statute preceding that enacted in 1974 encompassed the common law exception precluding the prosecution for rape of a husband who forcibly had sexual intercourse with his wife against her will. In dictum in an early case, ² we suggested that this common law rule was in effect in Massachusetts. In 1974, however, G.L. c. 265, § 22 (defining and punishing rape), and G.L. c. 277, § 39 (defining the word "rape" as used in an indictment), were completely revised by St.1974, c. 474, §§ 1, 7. Prior to the 1974 amendments, G.L. c. 265, § 22, ³ and G.L. c. 277, § 39, ⁴ utilized the common law terms to define rape. For the purposes of this case, we proceed on the assumption that, since both statutes used common law language, they maintained the spousal exclusion feature of the common law. ⁵ The Commonwealth points to the pre-1974 version of G.L. c. 277, § 39, as specifically incorporating the common law spousal exclusion by its use of the word "unlawful."

As we noted above, the offense of rape was substantially redefined in 1974. The General Court, in legislation we have stated "must be viewed as part of a comprehensive attempt to redefine the legal elements of rape," Commonwealth v. Gallant, 373...