Commonwealth v. Sherry

Sherry (defendant), Hussain, and Lefkowitz, physicians at a Boston hospital, were attending a party held for some hospital staff. During the party, the three physicians grabbed the victim and pulled her out of the apartment with the intent to go to another town. The victim protested but did not physically resist because she thought they were just “horsing around.” Once outside the apartment, Hussain carried the victim over his shoulder to Sherry’s car and held her in the front seat as the four drove to Rockport. She said she was not in fear at this time. When they arrived at Lefkowitz’s house in Rockport, the victim asked to be taken home. Instead, Hussain carried her inside where the three subsequently had independent sexual intercourse with the victim. The victim testified that she felt physically numbed and could not fight, and that she was humiliated and disgusted. On the way back to Boston, the physicians and the victim stopped to view a beach, eat breakfast, and get gas. The victim was taken back to her car and then she drove herself home. The three physicians were indicted for kidnapping and rape. During trial, the three physicians’ testimony substantially conflicted with that of the victim. The physicians testified that the victim had consented to the sexual intercourse. The physicians requested a jury instruction that told jurors to acquit the physicians of rape unless they found beyond a reasonable doubt that the physicians had actual knowledge of the victim’s lack of consent. The court refused to give that instruction. The jury found the three physicians not guilty of kidnapping, but convicted each of rape. Sherry, Hussain, and Lefkowitz appealed.