Appeals Court Decision in Commonwealth v. Chilcoff is a Cautionary Tale

Ruth O'Meara-Costello

In Commonwealth v. Chilcoff the defendant, a UMass student, was found guilty of raping a fellow student on the grounds that she was too drunk to consent when they had sex. While ordinarily rape requires a finding that a defendant used “force,” when a complainant lacks the ability to consent because she is incapacitated by intoxication, no showing of force is necessary. In such circumstances, in Massachusetts, the Commonwealth must prove beyond a reasonable doubt that the defendant “knew or reasonably should have known” that her condition left her unable to consent. A jury found the defendant guilty and the Massachusetts Appeals Court recently affirmed his conviction.

There are two aspects of the decision that I find noteworthy. First, in the aftermath of the incident, the defendant spoke to police. They told him, falsely, that they were not going to talk to his friends about the incident. He acknowledged having sex with the complainant but indicated that it was consensual—an admission that was used at trial to help prove the Commonwealth’s case against him. Before trial he moved to suppress his statements. That motion was denied, on the grounds that he was not in custody when he was interrogated and was therefore not entitled to Miranda warnings.

The lesson that student respondents can take from this holding in Chilcoff is this: if the police come to question you, whether it is in your bedroom, the common area of your dorm, or the police station, do not answer questions. Ask for a lawyer. Do this even if the police do not indicate that you are suspected of a crime. Remember that the police can lie to you and may not be honest about the purpose of their questioning or the information that their investigation has already revealed. Relatedly: if you are a respondent in a Title IX case, get a lawyer before you say anything to the school’s investigators or submit to an interview. Often students immediately want to start clearing their names and may even begin telling their story at the initial meeting where they are notified of the charges. That’s not a good idea. As in Chilcoff, acknowledging that sexual contact happened—even in the context of explaining that it was consensual—can be evidence against you in a criminal case, and you don’t know at the outset whether a Title IX case might turn criminal. Get a lawyer first, then you and your attorney can talk through whether you should answer questions and you can prepare for questioning.

The second thing I find noteworthy in Chilcoff is that in some previous cases, the Massachusetts Supreme Judicial Court (“SJC”) (the state’s highest court) has suggested that in a case where the Commonwealth is not required to prove that a defendant used force in order to find him guilty of rape, the defendant might be entitled to an instruction on mistake of fact. That is, he might be entitled to have the judge tell the jury that he should be found not guilty if he was reasonably mistaken about the complainant’s consent. In Chilcoff, the defendant requested such an instruction; the trial court declined to give it, but did include language in the instructions requiring the Commonwealth to prove that the defendant “knew or reasonably should have known” that the victim was unable to consent. The Appeals Court found that the instruction was sufficient. The SJC could still grant further review in Chilcoff. If it does not, then the Appeals Court’s decision suggests that defendants will rarely, if ever, be able to get mistake of fact instructions in rape cases.

The bottom line is that Chilcoff is a cautionary tale for students, who sometimes have the impression that because an incident happens on campus and is investigated by campus authorities, they are unlikely to be criminally charged. Students also sometimes have the impression that accusations that can lead to campus discipline are not likely to be taken seriously in the criminal system. That’s not always true. Criminal charges are possible and it is important to consult a lawyer as soon as possible if you are accused of sexual misconduct.


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