The Supreme Judicial Court today upheld a Virginia man's convictions for raping a co-worker and photographing her in the nude without her consent while they were in Boston on a business trip in 2018.
A Suffolk Superior Court jury convicted Marc Gibson on two counts of rape and one count of photographing an unclothed person without her consent the following year. He was sentenced to 3 to 4 years in state prison on the rape charges, to be followed by one year in a Suffolk County jail for taking the photographs. He also has to register as a convicted sex offender.
In his appeal, Gibson said prosecutors failed to prove the woman didn't give her consent for either the sex or the photos and that the judge browbeat the jury in general and one juror in particular into continuing to deliberate.
The state's highest court swatted down both arguments.
To prove the defendant guilty of rape, the Commonwealth had to show that the defendant compelled the victim to submit to sexual intercourse by force or threat of force and against the victim's will. ... The defendant argues that the Commonwealth provided insufficient evidence of force. We disagree. Force can be actual physical force, nonphysical constructive force, or threat of force. Sherman, 481 Mass. at 471, citing Commonwealth v. Lopez, 433 Mass. 722, 727 (2001). In situations where a victim lacks the capacity to consent, the Commonwealth "has no obligation to prove the use of force by the defendant beyond what is required for the act of penetration." Commonwealth v. Blache, 450 Mass. 583, 594 (2008). Rather, in addition to the act of penetration, the Commonwealth must prove that the defendant knew or reasonably should have known that the victim lacked the capacity to consent.
The court said prosecutors made their case that Gibson raped the woman even aside from the fact there was also plenty of evidence she was in no shape to give consent to sex because she had had too much to drink at a dinner with Gibson and other co-workers at the Renaissance Boston hotel.
In its summary and analysis of the case, the court said the woman complained after dinner of feeling ill - she was dizzy and felt nauseous - that Gibson offered to help her up to her room, that he then swiped her key and returned later to rape and photograph her. The court said that in Massachusetts, just the fact that the woman was incapacitated when Gibson fingered and then had sex with her is enough to show lack of consent - as proved by a hospital exam that showed at the time her blood alcohol content was between .08 and .20. He knew she was really not doing well, even aside from her statements, because once in her room, she went into the bathroom and vomited - as Gibson held her hair and rubbed her back.
He left, then later returned and this time had sex with her and took "sixteen explicit photographs," the summary continues.The woman testified she was conscious enough to know what Gibson was doing, but was unable to stop him, even aside from the fact he was far larger than her.
The jury could have found that the defendant used actual force when he entered A.M.'s room, uninvited, while she was asleep by using her room key that he had taken without permission, pulled the blanket off of her, removed her clothes without her consent, lay on top of her such that she could not resist, repositioned her body to penetrate her, continued trying to penetrate her after she moved away, and caused her pain by trying to have sex with her after he lost his erection.
As for the photos, the court concluded prosecutors and the woman herself proved they were not taken with her consent. She testified she did not know about them until the trial. And, the court said:
Furthermore, the photographs themselves show A.M. with her eyes closed and not engaging with the defendant; the jury thus could reasonably conclude that A.M. did not know about or consent to the photographs being taken.
As for the judge and the jury, the court basically said Gibson's lawyer left out what the judge said after he told the jury it needed to reach a verdict by the next day - that the judge would not be at work the following day, a Friday, and that if the jury didn't reach a verdict by the end of Thursday, it would have to resume deliberations after the weekend. That, the court concluded, was a scheduling issue, not an attempt at coercion.
And while the judge did meet individually with one jury who was finding the deliberations "very uncomfortable," he manged to quietly convince her to give deliberations another try, with an open mind. The court noted that when the juror seemed about to discuss the details of her disagreement with other jurors, the judge properly cut her off, because nobody outside the jury room is supposed to know specifically what is said inside it during deliberations.