as rape. There are clearly gray areas in which the man ought to resolve doubts in favor of not

4.2.12 WC: 191694 as rape. There are clearly gray areas in which the man ought to resolve doubts in favor of not acting and where the law ought to resolve doubts in favor of not convicting. I have represented several clients who fit this situation. One such case was a highly publicized prosecution of three prominent doctors and a nurse at one of Boston’s leading hospitals. One of the doctors had a party at his house for some of the hospital staff. During the party, the nurse danced with several of the doctors and two of them “fooled around” with her in the bathroom. As the party was ending, the three doctors invited the nurse to join them for a drive to Rockport where one of the doctors had a vacation home. She went along with them because in her words, she thought they were just “horsing around.” When they arrived at the Rockport home, two of the doctors smoked marijuana and all of three of them began to disrobe. She said she protested and told them to stop when the three of them began to undress her. Each of the defendants then had sex with the nurse in the bedroom. She testified that she felt physically numbed and could not resist. Sometime later, they drove back to Boston and stopped to view the beach, to have breakfast and fill the car up with gasoline. One of the doctors gave her his card and said he would be interested in hooking up with her again. The defendants each testified that the sexual intercourse was entirely consensual, that it was she who took her dress off and that she appeared at all times to be a willing participant. The issue in the case was what the jury should do if they believe both the nurse and the doctors—that is, if they thought that the nurse did not want to have sex with the three doctors, but if the doctors believed that she was a willing participant. The jury convicted the defendants and the judge sentenced them to six months imprisonment obviously suggesting that he had some doubts about the sufficiency of the case. I was asked to consult on the appeal. I accepted the assignment because I wanted to preserve the mistake of fact defense in the face of efforts to abolish it in rape cases. Unfortunately for these defendants their trial lawyers had not appropriately raised the issue of reasonable mistake of fact. They asked for an instruction that might have invited the jury to acquit even if the mistake had been unreasonable—that is, even if the doctors believed that “no” meant “yes.” The appellate court ruled, therefore, “We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable mistake of fact. We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness.” In a subsequent case, in which I was not involved, a Massachusetts Appellate Court ruled that even a reasonable mistake of fact is not a defense when it comes to consent or lack of consent in the context of a rape prosecution. 256 HOUSE_OVERSIGHT_017343