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19-P-352                                                 Appeals Court

                    COMMONWEALTH   vs.   BRIAN BUTLER.


                             No. 19-P-352.

           Essex.       December 10, 2019. - March 26, 2020.

             Present:    Wolohojian, Agnes, & Neyman, JJ.


Indecent Assault and Battery. Mistake. Consent. Evidence,
     State of mind, Relevancy and materiality. Police Officer.


     Indictment found and returned in the Superior Court
Department on November 30, 2016.

    The case was tried before Hélène Kazanjian, J.


     Robert L. Sheketoff for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.      The primary issue in this appeal is whether

the defendant, who was convicted of indecent assault and

battery, G. L. c. 265, § 13H, was entitled to a mistake of fact

as to consent instruction.     Although the Supreme Judicial Court

"hold[s] open the possibility that a mistake of fact instruction

may be an appropriate and fair defense to charges of indecent
                                                                   2


assault and battery on a person age fourteen or older,"

Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018), we conclude

that the trial judge did not err in declining to instruct on the

defense because any subjective belief the defendant may have

held as to the victim's consent was, in the facts and

circumstances here, objectively unreasonable as a matter of law.

     Background.     The defendant was a Salem police officer.

When he reported to the police station shortly before 7 A.M. on

November 1, 2016, the victim, whom we shall call James, was

being held in protective custody.    James, who was in his late

twenties and lived on Cape Cod with his mother, had been brought

to the station about three and one-half hours earlier, drunk and

wearing nothing other than a pair of saturated jeans and some

Halloween makeup.1    Much of what subsequently occurred at the

station was captured (both audio and video) by cameras located




     1 James had come to Salem with his sister and her boyfriend
to participate in Halloween activities. By the end of the
evening, James had become intoxicated to the point that he left
the shower in the hotel room running, the tub overflowed, and
there were several inches of water flooding both the bathroom
and the bedroom. James was belligerent towards his sister and
her boyfriend, who called the police. The responding officer
saw that James was unsteady on his feet, his speech was slurred,
and his eyes were glassy and bloodshot. James, who was naked
and in the bathroom when the officer arrived, seemed confused
about the officer's presence and admitted that he had been
drinking. He eventually put on a pair of wet jeans. The
officer determined that James posed a potential harm to himself
or others, placed him in protective custody, and drove him to
the station, where they arrived around 3:30 A.M.
                                                                    3


throughout the station.   We have reviewed these recordings

(videotapes); our narrative of the facts here includes not only

the testimonial evidence at trial, but also what is shown and

heard on the videotapes introduced at trial.   The facts are

largely undisputed.

    During booking, James reported that he had drunk six shots

of alcohol during the evening, that he suffered from anxiety,

that he had previously been treated for depression and for a

nervous breakdown, and that he had thought about taking his life

the day before but that he was not thinking of killing himself

at the moment.   The booking officer told James that he would

sleep at the station for a few hours and then be released.

James was also told that he was not under arrest.   After being

allowed to place a call to his mother, James was placed in a

cell with a cup of water and a roll of toilet paper.   He was not

given a blanket.   At some point, James took off his wet jeans

and tried to cover himself with the toilet paper.

    Shortly after 5 A.M., James, upset and apparently

intoxicated, began banging on the door of his cell.    He

repeatedly shouted that he wanted "his phone call" and the word

"now."   He also made random reference to his father having voted

for President Donald Trump.   An officer tried to calm James by

noting that he had already been allowed to call his mother.

After asking why James had removed his pants, and noting that he
                                                                     4


was naked, the officer brought James a garment resembling a

hospital gown, which he passed through a slot in the cell door.

James subsequently fell asleep.

     Shortly before 7 A.M., the defendant looked into James's

cell and asked him why he had made "a mess of" himself, why he

had no clothes on, where he lived, and whether he was under

arrest or in protective custody (which James could not

remember).   The defendant said that he would check on James's

status.   He then asked where James had obtained the hospital

gown, and suggested that James begin picking up the toilet paper

that was strewn around the cell.     James described his condition

at this point as "sick" and still "very, very drunk."

     Almost exactly thirty minutes later,2 the defendant (wearing

his uniform) returned carrying a small trash can and let himself

into James's cell -- despite the fact that it was against

department policy for an officer to go into a cell without a

second officer present.     The defendant and James began to pick

up the toilet paper, and after additional inquiry into James's

situation, the defendant told James that he could leave the cell

to call his mother.    James stood up, holding the hospital gown

to cover himself.     The defendant turned to face James, put down

the trash can, and took the hospital gown away.    James attempted


     2 The police department's protocol required that prisoners
be checked every thirty minutes.
                                                                          5


to cover his genitals with his hands and turned away from the

defendant.   In response, the defendant said, "No, it's all

right.    I've seen a prick before, trust me."     James, scared,

turned to face the defendant and moved his hands away from his

genitals.    The defendant then commented on James's penis, "Very

nice, though.    Uncut and everything, hunh.     Good for you."

James turned away from the defendant, who then gave the garment

back to James and said, "All right, here, just wrap it around

you then if you want, you can come out naked if you want to --

I'm just kidding."     James wrapped himself in the gown and

followed the defendant to the booking desk to call his mother.

       The phone was located on the officer's side of the booking

desk, which was approximately chest-high.      The defendant went to

the officer's side of the desk to dial the phone.       Meanwhile,

James stood up against the other side of the desk.       After the

defendant dialed the phone, he came out from behind the desk,

stood a few feet from James, looked down at James's crotch, and

said, "[V]ery nice."    He continued to look at James until it was

apparent that the phone call was not going to be answered.          The

defendant then returned behind the desk and hung up the phone.

There followed a discussion about James's lack of clothes, and

James asked for a blanket, which the defendant said he would

get.   The defendant came out from behind the desk and took the

hospital gown away from James, again leaving him naked.        James
                                                                         6


again covered his genitals with his hands, and the defendant

commented, "It's okay, you don't have to cover up.     My God."     In

apparent reference to James's penis the defendant said, "I do

like that, though.   That's good.    You don't have to be that

modest.   I mean, my goodness."     After the defendant gave James a

blanket, the defendant placed his hand on James's hip above his

right buttock and steered him back to his cell.      Once James was

back in the cell, the defendant again engaged him in

conversation, asking how his jeans had become soaked.      At the

end of this conversation, the defendant took James's jeans away.

    About forty-five minutes later, again in violation of

department policy, the defendant returned to James's cell alone.

The defendant told James that his mother had called and had

provided James's sister's phone number.      The defendant stated

that he would allow James to call his sister, but James (whose

relationship with his sister was strained given the events

described in note 1, supra) said that he would prefer to wait.

The defendant then engaged James in a conversation about his

tattoos during which the defendant moved close to James, and at

one point touched James's forehead.     When James asked to call

his mother, the defendant led James back to the booking area.

    The defendant dialed the phone and then handed it across

the booking desk to James.   James's mother did not answer, and

James left only a short message.     James then started to walk
                                                                    7


back to his cell, but the defendant called him back and asked

whether he wanted to call his sister.   James returned toward the

desk and the defendant approached him, placed his hand on

James's buttock, and then pressed his body against James as he

(the defendant) dialed the phone.   After dialing the number, the

defendant put his arm around James's waist and again placed his

left arm on James's buttock, where he let it rest.

    What happened as James then spoke on the phone with his

sister is at the heart of this appeal, and so we set out

separately James's testimony on the point as well as what is

shown on the videotape.   James testified that the defendant

"reached around, grabbed my penis and started massaging it and

whispered in my ear 'Is this okay?'"    James responded, "[Y]es"

because he was terrified and thought that he "wasn't going to

get out" if he did not do what the defendant wanted.    James did

not want the defendant to touch him, but he was afraid that if

he did not allow the defendant to do so, he "was not going to

have a good rest of the day," that the defendant could hurt him,

and that a cry for help would be futile or result in his

"getting beat up or charged on some trumped-up charges or kept

in jail for no reason or worse, like raped."

    The videotape shows the defendant moving his left arm from

James's buttock and then running it around to the front of

James's body.   At this point, the defendant was standing side by
                                                                    8


side with James, and both men had their fronts facing the

booking desk.   After the defendant moved his left arm around to

James's front, he asked, "Do you mind," to which James

responded, "No."   The defendant then said, "Can I go inside";3

James said, "[C]old"; and the defendant again said, "Can I go

inside."   During this short exchange, the defendant turned his

body so that he could reach James's penis with his right hand

rather than his left.4

     The defendant then massaged James's penis for two minutes

while James spoke with his sister, asking her to come to the

station and to bring him some clothes.    At no point did James

move away from the defendant or physically resist.    At the same

time, James kept the blanket tightly wrapped around him and gave

no physical sign of encouragement, invitation, or participation.

     Once James finished speaking with his sister, the defendant

told James to follow him to a broom closet (which was not under

video surveillance) and fellated James after he said "yes."       Two

minutes later, a sound in the booking area caused the defendant


     3 The Commonwealth contends that the defendant said
"outside" the first time, but our careful review of the
videotape leads us to conclude that the defendant said "inside"
both times.

     4 We do not see   any meaningful distinction between James's
recollection that he   said "yes" in response to an affirmatively-
phrased question and   the videotape's record that he said "no" to
a negatively-phrased   one. Linguistically, both expressed
assent.
                                                                    9


to "freak out," and he quickly left the broom closet to

investigate.   Seeing nothing, he returned to the broom closet,

referring to "finishing off" James.   After about eight and one-

half minutes, James told the defendant to stop but, fearing the

defendant would "do something" to him as a result, stated that

he would not "tell on him" and "if he wanted to come back later

he could," but that James "can't right now."   The defendant

returned James to his cell.

    James's sister picked him up not long thereafter.     On the

ride home, James became hysterical, called his mother, and

disclosed the events to her.   Some days later, he reported them

to the Salem police department.

    The defendant was charged with rape and indecent assault

and battery.   The defendant neither testified himself nor called

any witnesses on his behalf.   Relying on James's testimony that

he said "yes," and urging the jurors to assess the videotapes

themselves, the defendant's consistent position at trial -- from
                                                                  10


opening5 through closing6 -- was that James gave actual consent

and was not so intoxicated that he could not do so.

     We have set out in the margin the pertinent parts of the

judge's instructions with respect to the indecent assault and


     5   Defense counsel stated in his opening:

            "Mr. Butler says, 'May I go inside?'

          "This 28-year-old male, whose level of sobriety you
     can figure out yourself, because you may not think he's
     intoxicated, he says something back. Again, you will hear
     it, whatever that word may be. We know from his
     conversation with the police it is 'Yes.' But it's
     followed by a phrase, something like 'cold.' And you can
     decide if there's a tone, a giggle, or a laugh. But
     whatever ambiguity you may have listening to that 'May I go
     inside?' response, Mr. Butler, who they want you to call
     guilty of rape, says again 'May I go inside?' 'May I go
     inside?' because he hasn't and he doesn't until [James]
     says yes.

          "And for all the image of him there, the cold in his
     cell, and we all know that is terrible, the fact is that
     28-year-old man next to this man, Mr. Butler, who from all
     of their prior interactions, you will see, has never raised
     his voice, never done anything, is not armed, does not
     threaten, does not verbally or physically coerce, you will
     hear he says yes . . . ."

     6   In closing, defense counsel stated:

          "But [James], when he was given the question, chose to
     say yes. Not because he was coerced or intimidated. Not
     because it was a wise decision. Maybe his fog still
     existed. Bad choices get made.

          "But it was a choice he made, conscious of his
     options. Conscious of his ability to exercise free will.
     There is nothing in the actual record of this case that
     shows otherwise. And to simply talk about the horrors of
     being raped doesn't substitute for the facts that exist."
                                                                  11


battery charge.7     Among other things, the judge gave the mistake

of fact instruction recognized in Commonwealth v. Blache, 450

Mass. 583, 594 (2008),8 which was limited to situations where the




     7   The judge instructed:

          "The word 'indecent' is not a technical term, but
     rather a common word that may be assumed to be understood
     in its common meaning by an ordinary jury. What is
     indecent should be measured [b]y common understanding and
     practices. For example, the fondling of a person's
     breasts, touching his or her buttocks, or reaching between
     his or her legs may constitute indecent assault and
     battery.

            ". . .

          "The Commonwealth must prove that at the time of the
     indecent assault and battery, the complainant did not
     consent. You may consider evidence of the complainant's
     state of mind at the time of the alleged incident on the
     issue of consent.

          "Now, a complainant is not required to use physical
     force to resist. However, you may consider evidence of any
     attempt to restrain or confine the complainant, violence by
     the defendant, or struggle or outcry by the complainant on
     the issues of force and consent.

          "However, lack of such evidence does not necessarily
     imply consent or the absence of force because in certain
     circumstances, physical resistance may not be possible.
     For example, the complainant in a certain situation may not
     resist with force because of fear of bodily injury or
     because actual force was being applied to him or her.

          "You may consider all of the circumstances and the
     entire sequence of events in determining whether the
     indecent assault and battery was without the complainant's
     consent and his ability to resist."

     8   The judge instructed:
                                                                12


ability to consent is impaired by drugs or alcohol.   But the

judge refused to give the defendant's additional requested

mistake of fact instruction, which was not limited to situations

of impairment by drugs or alcohol, but rather sought to have the

jury consider whether he had an honest and reasonable belief

that the victim had consented to the indecent touching.

Specifically, the defendant requested that the jury be

instructed:

    "[I]t is the Commonwealth's burden to prove beyond all
    reasonable doubt that the Defendant would know that
    the Complainant did not consent to the acts of which
    [sic] are the basis of the indecent assault and
    battery charge alleged. If from all the evidence, you


         "If, because of the consumption of drugs and/or
    alcohol a person is so impaired as to be incapable of
    consenting to the touching, then any touching that occurred
    during such incapacity is without the person's consent.

         ". . .

         "If you find that the Commonwealth has proved beyond a
    reasonable doubt that the complainant was so impaired as to
    be incapable of consenting as I have just described, and if
    you further find that the Commonwealth has proved beyond a
    reasonable doubt that the defendant knew or reasonably
    should have known that the complainant's condition rendered
    him incapable of consenting, then the Commonwealth has
    proved the element of lack of consent.

         "In determining whether the Commonwealth has proved
    beyond a reasonable doubt that the defendant should have
    reasonably known that the complainant was incapable of
    consenting, you should examine whether a reasonable person,
    in the circumstances known to the defendant, would have
    known the complainant was incapable of consent."

See Blache, 450 Mass. at 594.
                                                                  13


     have a reasonable doubt whether the defendant[,]
     reasonably and in good faith, believed that [James]
     voluntarily consented to engage in the touching which
     [is] the basis of the indecent assault and battery
     charge, you must give the defendant the benefit of
     that reasonable doubt, and acquit him on that charge."9

     During deliberations, the jury sent a note to the judge

stating, "One of the jurors wants to know the legal definition

of consent.   For example, can't give consent if drunk; or that

are [sic] other circumstances?"   The judge and counsel discussed

how to respond to the jury's note and concluded (with both

parties' consent) to refer the jury back to the instructions

previously delivered.

     The jury acquitted the defendant of the rape charge, but

convicted him of indecent assault and battery.    This appeal

followed.

     Discussion.    The defendant raises two issues on appeal.

First, he argues that the judge erred in refusing to give his

proposed mistake of fact as to consent instruction.    Second, he

argues that the judge erred in excluding evidence that the

victim was gay.    We examine each of these claims in turn.

     1.   Mistake of fact as to consent.   The Supreme Judicial

Court has stated that a mistake of fact as to consent defense

"might, in some circumstances, be appropriate" in an indecent




     9 The defendant sought the same instruction with respect to
the rape charge.
                                                                   14


assault and battery case "where a defendant's claim of

reasonable mistake of fact is at least arguably supported by the

evidence" (citation omitted).   Kennedy, 478 Mass. at 810.   That

said, the court has neither held nor implied that the defense is

available in all indecent assault and battery cases.10   See id.


     10Even in those States where the defense has been formally
recognized, there are many circumstances in which appellate
courts have ruled it is not required.

     Alabama: White v. State, 237 Ala. 610, 613 (1939) (where
victim was of low intellect, no error to refuse instruction);
Rhoden v. State, 49 Ala. App. 605, 609-610 (1973) (instruction
not necessary where covered by other instructions).

     Alaska:   Walker v. State, 652 P.2d 88, 92 n.7 (Alaska 1982)
(waiver).

     California: People v. Williams, 4 Cal. 4th 354, 362 (1992)
(evidence did not support giving instruction; instruction not
necessary where theory of defense is actual consent); People v.
Burnett, 9 Cal. App. 4th 685, 690-691 (1992) (instruction not
necessary where defense was actual consent); People v. Simmons,
213 Cal. App. 3d 573, 579-581 (1989) (evidence regarding
victim's conduct did not give rise to instruction and defendant
did not testify); People v. Romero, 171 Cal. App. 3d 1149, 1156
(1985) (evidence did not rise to level requiring instruction and
defendant did not testify); People v. Gonzalez, 141 Cal. App. 3d
786, 792-793 (1983) (same).

     Connecticut: State v. Jeffrey, 220 Conn. 698, 718-719
(1991) (instruction not necessary where defense was fabrication,
not consent).

     District of Columbia: Bryant v. United States, 859 A.2d
1093, 1105-1106 (D.C. 2004) (evidence of victim's conduct did
not support giving instruction).

     Georgia: Johnson v. State, 204 Ga. App. 369, 369 (1992)
(judge did not err in refusing to give instruction as evidence
did not permit construction that defendant had reasonable belief
of consent).
                                                                  15


Nor has it ever held in any particular case that the defendant

was entitled to the defense in light of the facts and

circumstances presented.11   See id. (defendant not entitled to

mistake of fact instruction because facts did not warrant it).

See also Commonwealth v. Moran, 439 Mass. 482, 489-490 (2003);




     Indiana: Boyd v. State, 564 N.E.2d 519, 522-523 (Ind.
1991) (evidence did not merit instruction); Tyson v. State, 619
N.E.2d 276, 295 (Ind. Ct. App. 1993) (instruction not merited
where defense was actual consent).

     Missouri: State v. Lint, 657 S.W.2d 722, 726-727 (Mo. Ct.
App. 1983) (evidence did not support instruction).

     Nevada: Honeycutt v. State, 118 Nev. 660, 671 (2002)
(instruction not appropriate where there was evidence of
threats, force, or coercion).

     New York: State v. Williams, 81 N.Y.2d 303, 316-317 (1993)
(evidence of force necessary for rape conviction precluded
instruction).

     Oklahoma: Green v. State, 611 P.2d 262, 265-266 (Okla.
Crim. App. 1980) (where no evidence of consent, no instruction
required); Bosin v. State, 565 P.2d 1061, 1065 (Okla. Crim. App.
1977) (same).

     11Moreover, except where the mistake of fact concerns the
victim's capacity to consent, see Blache, 450 Mass. at 594, the
mistake of fact defense has been rejected in sex offense cases.
Thus, for example, because proof of force is required in rape
cases, we do not recognize mistake of fact concerning the
victim's consent as a defense in rape cases except to the extent
recognized in Blache. See Commonwealth v. Lopez, 433 Mass. 722,
728-729 (2001); Commonwealth v. Ascolillo, 405 Mass. 456, 463-
464 (1989); Commonwealth v. Grant, 391 Mass. 645, 651 (1984).
Also by way of example, we do not recognize mistake of fact
concerning a victim's age as a defense to statutory rape.
Commonwealth v. Miller, 385 Mass. 521, 525 (1982).
                                                                   16


Commonwealth v. Lopez, 433 Mass. 722, 732 (2001); Commonwealth

v. Ascolillo, 405 Mass. 456, 463 (1989); Commonwealth v.

Cordeiro, 401 Mass. 843, 849-851 (1988); Commonwealth v. Grant,

391 Mass. 645, 650-651 (1984); Commonwealth v. Sherry, 386 Mass.

682, 697 (1982); Commonwealth v. Simcock, 31 Mass. App. Ct. 184,

191-192 (1991).   Nonetheless, we begin with the premise that a

mistake of fact as to consent defense may be available in cases

of indecent assault and battery where "[t]he evidence, viewed as

a whole, raise[s] the issue of honest and reasonable mistake."

Simcock, 31 Mass. App. Ct. at 190.    To understand whether the

evidence did so here, we begin by examining the elements of

indecent assault and battery on a person over the age of

fourteen.   We next examine the contours of the mistake of fact

as to consent defense.   Finally, we analyze whether the evidence

fairly raised the defense such that the defendant was entitled

to the instruction he requested.

     "To prove indecent assault and battery on a person age

fourteen or older, the Commonwealth is required to establish

that the defendant committed an intentional, unprivileged, and

indecent touching of the victim" without the victim's consent

(quotation and citation omitted).12   Kennedy, 478 Mass. at 810.




     12Where the victim is under the age of fourteen, proof of
lack of consent is not required, G. L. c. 265, § 13B; the
defense, therefore, would never be at issue.
                                                                   17


Indecent assault and battery is a general intent crime.    Thus,

although the Commonwealth bears the burden of proving the victim

did not consent to the touching, it does not need to prove that

the defendant intended that the touching be without consent.

See Moran, 439 Mass. at 490; Simcock, 31 Mass. App. Ct. at 188.

The Commonwealth need not prove the defendant's state of mind

regarding the victim's consent, see Lopez, 433 Mass. at 727

("Historically, the relevant inquiry has been limited to consent

in fact, and no mens rea or knowledge as to the lack of consent

has ever been required"); Cordeiro, 401 Mass. at 850 (rape);

Grant, 391 Mass. at 650-651 (rape), except in the "special

circumstances presented by a complainant who may have been

incapable of consent," Blache, 450 Mass. at 599.   Thus, although

it is generally called a "defense," the defendant's state of

mind as to the victim's consent is not truly a defense; instead,

it negates an essential element of the crime.   See Lopez, supra

at 725 n.3.   Nonetheless, for convenience, we refer to it here

as a "defense" in a nontechnical way.

    In some cases, such as this one, the defense will be

grounded in the victim's actual consent.   In these situations,

the defendant is not claiming to be laboring under a mistake of

fact as to whether the victim consented.   Instead, the defense

is that the defendant intended to -- and did -- act with the
                                                                    18


victim's actual consent.13   In other cases, the defendant's state

of mind is at issue because he claims that the victim's conduct

was such that it led him to mistakenly and reasonably believe

there was consent when, in fact, there was none.    In these types

of cases, if there is evidence of "clear, objective indicia of

nonconsent," then the defendant is not entitled to the defense.

Kennedy, 478 Mass. at 811.    Instead, there must be substantial

evidence of objective manifestations (i.e., the victim's conduct

or words) of the victim's state of mind that are sufficiently

equivocal to have "led a defendant to reasonably and in good

faith believe consent existed where it did not."    Lopez, 433

Mass. at 731 n.5, quoting People v. Williams, 4 Cal. 4th 354,

362 (1992).

     A mistake of fact as to consent defense focuses on a

defendant's state of mind from both a subjective and objective

viewpoint.    See Grant, 391 Mass. at 651 (mistake of fact is not

"raised in the absence of evidence from which the jury could

find that, although the victim did not consent, the defendant

reasonably and in good faith believed otherwise"); Sherry, 386

Mass. at 697 ("The defense of mistake of fact . . . requires

that the accused act in good faith and with reasonableness");


     13The Supreme Judicial Court has suggested that, in
declining to give a mistake of fact instruction, a judge may
consider that the theory of defense was actual consent. See
Moran, 439 Mass. at 490.
                                                                  19


Simcock, 31 Mass. App. Ct. at 189 ("A requirement for an

instruction based upon one's actual mistake as to consent

without regard to its reasonableness in the circumstances would

be difficult to justify").    The subjective component requires

evidence that the defendant holds an actual honest (sometimes

called good faith) belief regarding the victim's consent.14

"[T]he defendant's actual belief is most often, and most easily,

raised by direct evidence in the form of the defendant's

testimony. . . . However, a defendant is not required to testify

or to present any evidence and may rely entirely on the

Commonwealth's case to" fairly raise the issue of his subjective

state of mind.    Commonwealth v. Toon, 55 Mass. App. Ct. 642, 650

(2002) (discussing self-defense).

     The objective component requires that the defendant's

actual belief be reasonable in the circumstances.    Grant, 391

Mass. at 651; Sherry, 386 Mass. at 697; Simcock, 31 Mass. App.

Ct. at 189.   A judge may determine, as a matter of law, whether

the facts sufficiently raise an issue of objective

reasonableness.    Thus, for example, "[a] defendant who ignores a

victim's clear and unambiguous pleas to stop does not raise a




     14The dual requirement of subjective belief and objective
reasonableness is not particular to the mistake of fact as to
consent defense; it is also found in self-defense. See
Commonwealth v. Harrington, 379 Mass. 446, 450 (1980);
Commonwealth v. Harris, 376 Mass. 201, 208 (1978).
                                                                  20


legitimate claim of mistake of fact as to consent."   Kennedy,

478 Mass. at 811.   Likewise, proof of force "should negate any

possible mistake as to consent."   Lopez, 433 Mass. at 729.    See

Commonwealth v. Sherman, 481 Mass. 464, 475 (2019).

    We now turn to the defendant's proposed instruction, which,

for convenience, we repeat here:

    "[I]t is the Commonwealth's burden to prove beyond all
    reasonable doubt that the Defendant would know that
    the Complainant did not consent to the acts of which
    [sic] are the basis of the indecent assault and
    battery charge alleged. If from all the evidence, you
    have a reasonable doubt whether the defendant
    reasonably and in good faith, believed that [James]
    voluntarily consented to engage in the touching which
    [is] the basis of the indecent assault and battery
    charge, you must give the defendant the benefit of
    that reasonable doubt, and acquit him on that charge."

The defendant was not entitled to the first sentence because it

was an inaccurate statement of the law.   The Commonwealth is not

required to prove that the defendant intended the touching to be

without the victim's consent "or that [the defendant] had actual

knowledge of the victim's lack of consent."   Ascolillo, 405

Mass. at 463; Cordeiro, 401 Mass. at 851 n.11.

    We also conclude that the judge did not err in declining to

give the remainder of the defendant's proposed instruction.

Even accepting for the sake of argument that there was

sufficient circumstantial evidence to raise a question as to the
                                                                    21


defendant's actual belief of James's consent,15 the evidence

taken as a whole did not raise an issue that the defendant's

belief was objectively reasonable.    The defendant, an

experienced police officer, could be presumed to know that a

person cannot be held in protective custody unless he is

incapacitated and, therefore, that James was in fact

incapacitated.16   The power imbalance between the defendant and

James should also be considered.    The defendant was in charge of

those in custody at the station.    He controlled James's release

from custody and James's ability to contact his family.    He had

taken away James's only clothing.    By contrast, James, who was

naked, was trapped at the station and completely dependent on




     15Because the defendant did not testify, there was no
direct evidence of his actual belief as to James's consent. In
this unusual case, however, there was circumstantial evidence
from which the defendant's state of mind could be inferred.
Specifically, James testified (and the videotapes reflected)
that James verbally assented to the defendant's request to "go
inside." In addition, although James was not required to resist
or physically rebuke the defendant, the absence of such physical
resistance or rebuke, coupled with James's verbal assent, could
give rise to an inference the defendant actually believed James
had consented. See Toon, 55 Mass. App. Ct. at 651 (in absence
of direct evidence, circumstantial evidence may serve as basis
for inference as to defendant's actual state of mind).

     16James was in protective custody, G. L. c. 111B, § 8,
because he was incapacitated by alcohol. "'Incapacitated' [is]
the condition of an intoxicated person who, by reason of the
consumption of intoxicating liquor is (1) unconscious, (2) in
need of medical attention, (3) likely to suffer or cause
physical harm or damage property, or (4) disorderly." G. L.
c. 111B, § 3.
                                                                  22


the defendant's help to leave.   There were no other officers

around to whom James could appeal for help; the defendant made

sure that he was alone with James and out of view of others.     In

addition, the defendant manipulated James's vulnerability.      When

James tried to return to his cell immediately before the

indecent assault and battery occurred, the defendant called him

back and then kept him there by giving him the opportunity to

call his sister.   James, who needed his sister's help to get out

of custody, was then essentially tethered to the booking desk by

the phone cord while the defendant assaulted him.

     Although it is true that James verbally assented to the

defendant's question about "going inside," he testified that he

did so because he was terrified and afraid of what might happen

if he refused the defendant's advance.17   We have recognized "the

particular power police officers -- or would-be police officers

-- hold over ordinary citizens and the potential for abuse of


     17We note that when police seek consent in other
circumstances, such as to search or to take a person into
protective custody, that consent must be voluntary. See
Ringuette v. Fall River, 888 F. Supp. 258, 268 (D. Mass. 1995)
(consent to protective custody); Commonwealth v. Rogers, 444
Mass. 234, 237 (2005) (consent to search). Thus, in the context
of warrantless searches, the Commonwealth must prove "consent
unfettered by coercion, express or implied, and also something
more than mere acquiescence to a claim of lawful authority"
(quotations and citations omitted). Rogers, supra. "Subtle
coercion, in the form of an assertion of authority or color of
office by the law enforcement officers may make what appears to
be a voluntary act an involuntary one." Id. at 246, quoting
United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976).
                                                                    23


that power to compel submission to unwanted sexual advances with

less resistance than they might otherwise encounter."

Commonwealth v. Caracciola, 409 Mass. 648, 656 (1991).

Moreover, the evidence showed at least one offensive touching on

James's buttocks before the defendant asked his less-than-clear

question about "going inside," and James's testimony also placed

the touching before the request.   Finally, James gave no

physical indications of encouragement or invitation, and he was

not required to resist.

      Thus, although there was circumstantial evidence to support

a finding that the defendant may have subjectively believed

James had consented to the touching, the evidence taken as a

whole did not fairly raise an issue that the defendant's belief

was objectively reasonable.

      Another consideration supports our conclusion that, on the

facts presented here, any subjective belief the defendant

harbored as to James's consent could not be objectively

reasonable.   In the closely-related situation of people held in

correctional institutions, the Legislature has eliminated

consent as a defense where a correction officer engages in

sexual relations with an inmate.   G. L. c. 268, § 21A.   In such

prosecutions, "an inmate shall be deemed incapable of consent."

Id.   Although the provisions of that statute are not binding

here, they reflect a legislative judgment pertinent to assessing
                                                                   24


the objective reasonableness of the defendant's belief as to

James's consent in this case.   It makes no sense to think that

persons in police custody are any more capable of voluntarily

consenting to sexual contact with their jailors than are inmates

in correctional facilities.   And we note that it would make good

sense for the Legislature to correct this gap in legislation.

     For all these reasons, we conclude that the judge did not

err in declining to give the defendant's requested instruction

regarding mistake of fact as to consent.

     2.   Exclusion of evidence of victim's sexual orientation.

The judge correctly excluded evidence that James self-identified

as gay on the ground that the evidence was not relevant.     The

defendant's argument that "it is more probable that a gay man

would consent to the sexual advances of another man than a

heterosexual man would" is unsupported by legal authority,

citation, or logic.18   A sexual assault victim's sexual

orientation has no bearing on his or her consent regardless of

whether he or she is heterosexual or homosexual.   See Kvasnikoff

v. State, 674 P.2d 302, 305-306 (Alaska Ct. App. 1983); People

v. Murphy, 919 P.2d 191, 194-195 (Colo. 1996); People v.




     18This is not a case where application of the rape shield
statute would be in conflict with the "defendant's
constitutional right to present evidence that might lead the
jury to find that a Commonwealth witness is lying or otherwise
unreliable." Commonwealth v. Polk, 462 Mass. 23, 38 (2012).
                                                                 25


Hackett, 421 Mich. 338, 352-353 (1984).    Moreover, its admission

was barred by the rape shield statute.    See G. L. c. 233, § 21B.

See also Mass. G. Evid. § 412(a) (2019).

                                   Judgment affirmed.
