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When a sexual partner says 'enough' during sex that means more than just pulling out, court rules

The Massachusetts Appeals Court ruled today a district-court judge erred in not granting a woman a restraining order against her ex for continuing to engage in sexual activities on her even after she told him she was "done" and "tired" during sex and had him pull out of her.

In declining to grant the woman a restraining order, the judge said that the man continuing to lie atop her and masturbate on her after he pulled out at her request was not sexual abuse as defined by state law. The appeals court, however, ruled it can be and ordered him to re-hear the request if the woman still wishes to go forward.

The ruling stems from a case in Somerville District Court involving a couple who started dating in 2012, bought a condominium in 2013 and then continued to have sex even after the man moved out in October, 2015 - at least until an incident in December of that year while they were having sex:

At some point during the sexual encounter, the plaintiff stated, "I'm done, I'm tired" while the defendant was physically on top of her. She told the defendant at least twice that she "did not want to be doing this." The defendant stated "that he wanted to finish." The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.

About a year and a half later, the woman sought a restraining order against the man, and cited this incident in her request. But Judge Paul Yee ruled she:

failed to prove that the defendant caused her to "engage involuntarily in sexual relations by force, threat or duress," G. L. c. 209A, § 1 (c), because the parties were no longer engaging in sexual intercourse after the plaintiff said she was "done" and "tired." Rather, the judge reasoned, "the most it could have been was an assault and battery at that point in time."

The domestic-abuse law does not define "force, threat or duress," but the appeals court found an answer in a seemingly unrelated law dealing with inappropriate sexual relations between prison guards and inmates, which

[C]riminalizes sexual relations between employees of correctional institutions and inmates, as "intentional, inappropriate contact of a sexual nature, including, but not limited to conduct prohibited by [various enumerated criminal sexual offenses]."

The court then explained how to draw an inference from that for the case before it:

In the context of G. L. c. 209A [the domestic-abuse law], we do not believe that the Legislature intended to define "sexual relations" so narrowly as to encompass only acts of sexual intercourse, where the statute seeks to protect victims from further sexual abuse and where it has been defined broadly in another chapter of the General Laws. The plaintiff testified that after she said, "I'm done, I'm tired," and communicated that she wanted the defendant to stop, he remained physically on top of her and continued to masturbate over her until he ejaculated. In connection with conduct that is encompassed by the phrase "sexual relations," no less than in the context of "sexual intercourse" as used in the statutes proscribing rape, a person's consent may be withdrawn prior to or during the act. See Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 658-661 (2012). The evidence, taken in the light most favorable to the plaintiff, was sufficient for the fact finder to conclude that the defendant caused the plaintiff to engage involuntarily in sexual relations.

We further conclude that sufficient evidence was introduced to prove that the sexual relations between the parties were the product of force. The term "force" is not further defined in G. L. c. 209A, § 1, and has not been clearly defined by the case law interpreting the statute. Force is an element of both the offense of rape, G. L. c. 265, § 22 and of child rape, G. L. c. 265, § 22A, and cases examining the sufficiency of the evidence as it relates to the use of force in that context are instructive. In Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254 (2008), this court concluded that sufficient evidence was presented to conclude that the defendant raped the victim, a child, by physical force where "the defendant pulled the victim's legs apart and positioned himself against her spread legs while he engaged in oral sex." In Commonwealth v. Stockhammer, 409 Mass. 867, 873 (1991), the Supreme Judicial Court concluded that sufficient evidence was presented to overcome the defendant's motion for a required finding of not guilty where the evidence indicated that the defendant physically "forced the complainant onto her bed, removed and disarranged her clothes while holding her down, and had intercourse with her while the complainant pushed at him and told him to stop." Using these cases as guidance, and taking the evidence in the light most favorable to the plaintiff, we conclude that the defendant's remaining physically on top of the plaintiff and masturbating to ejaculation after she said, "I'm done. I'm tired" was sufficient to establish the element of force as it appears in G. L. c. 209A, § 1 (c).

The appeals court also ruled Yee erred in appearing to discount the woman's testimony and dismiss her request before he had even heard all the evidence from both sides in the case. For one thing, district courts are not allowed to dismiss cases like that, the appeals court said.

Instead, the resolution of questions of credibility, ambiguity, and contradiction must await the close of the evidence.

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Comments

About a year and a half later, the woman sought a restraining order

Oh.

Are you sure you want your private behavior parsed in this detail? A year and a half after the fact? Good luck with that.

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Voting closed 30

This is your response??
Victim blamers always gonna victim blame.

Good luck with that.

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Maybe she tried to get him to stay away without a restraining order because she didn't want to put this incident out in public. And after a year and a half, he wouldn't leave her alone, so she filed for a restraining order. Not everyone goes to court immediately after an incident, but instead tries to see if they can work things out. Apparently in this case, getting him to stay away without going to court didn't work.

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“Not leaving her alone” is a good basis for a restraining order. People get restraining orders against former significant others for not leaving them alone all the time. If restraining orders were given out every time one partner finished up on their own, a lot of otherwise happy couples would have restraining orders against them.

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that they don't work most of the time, because all too often, the state doesn't do enough to protect a victim's confidentiality.

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And even though I think it is poor form to be airing details about consensual sexual encounters, the SJC has wisely published this decision using only initials.

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where it became non-consensual. that's the whole point.

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Then she asked for it to end. He did the right thing at first and ended her involvement in the conjugal act. Whether what happened after that was the right thing is subject to debate, but there are elements to their relationship that makes the ending a little different than when a guy whips it out on the train and starts taking care of business.

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He stayed on top of her. The problem is not that he finished on his own, but that after she withdrew her consent, he forced her to remain involved by literally lying on top of her while he finished.

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And that part kind of bothers me. Still don’t see how it’s grounds for a restraining order, but what do I know.

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This one is a head scratcher.

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So, there was a sexual encounter that ended with the guy jerking it, so the woman takes out a restraining order? I mean, I could see her dumping him over the situation, then, if he insists on contacting her, then taking out the restraining order, but there is none of that mentioned in the background of the case.

Unless there were facts that didn’t get to this level, this whole thing smells funny.

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If you read Adam's writeup, you'll see that this incident was cited in her restraining order, not that the entire restraining order was centered around this incident.

The current ruling at hand only deals with this portion of the restraining order. So yes, it would appear that there's more to the background of why the order was requested.

And I'm not sure it's up to you to decide what is necessary and sufficient for a restraining order.

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It was the only thing mentioned in the decision.

And as one could figure out from this article, there is a whole branch of government- check that, two branches of government, one of which is involved in the issuing of restraining orders- who decides what is necessary and sufficient for a restraining order. That said, one is allowed to criticize a decision of the courts and what is necessary and sufficient for a restraining order. Even you. A restraining order for bad sex?

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Do you know what was in it?

Pretty glib to call something that would appear to be a kind of sexual assault "bad sex". Nay, I'd say you're approaching Kavanaughesque with that, since it's a classic line of men who refuse to believe that sexual assault is a thing that manifests itself in many ways.

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209A restraining orders need to be reformed.

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"This term is not defined in the MGL to apply to this situation, but we're going to find the next closest thing and claim that that's what the legislature meant to say."

Motivating reasoning incarnate. The first judge was right to dismiss that claim in the first place.

You can withdraw your consent for the sudden stop at the end to kill you, but not after you've jumped off the ledge. We used to refer to this fundamental truth as "consequences of choices made." Now there are no consequences that anyone can be held to. If you don't like the outcome of your choices, there's always someone else to blame for it.

That is why I am a Republican. The Democrats don't even pretend to care about personal responsibility anymore. It's all victim victim victim with them and let's find the most convenient scapegoat and gin up a propaganda campaign to repeat the lie until it's believed by enough gullible people.

The more gullible people the better. The best way to keep people gullible is to never challenge them intellectually...so you've got to gut the school system, higher education, and any institutions that used to be built on the precept of adversarial intellectual debate.

Disgusting. And frightening.

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Having sex isn't jumping off a cliff.

You're not guaranteed a splat at the end.

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I'm going focus on the first bit here.

"This term is not defined in the MGL to apply to this situation, but we're going to find the next closest thing and claim that that's what the legislature meant to say."

That's one of the things judges are exactly meant to do. In the absence of more obvious language, the goal of the judge is to try to match vague statutory definition with more established definitions and precedent to try and make as consistent an application as possible.

Is it imperfect and subjective? Yes, but that's the point of law.

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So you're okay if the guy in question lies on top of you, masturbating and ejaculating? Because that's sexual assault. And once she withdrew her consent, it's the same for her.

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So it is the responsibility of the woman to endure, rather than of the man to get off her and stop jerking off? Now, that’s Republican “thought” for you.

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I didn't see that coming...

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