#1May 18th, 2007
By DENISE LAVOIE
AP Legal Affairs Writer
BOSTON (AP) - A woman who had sex with her boyfriend's brother in her darkened room late one night claimed she was raped, saying the man tricked her into the act by impersonating her boyfriend.
But Massachusetts' Supreme Judicial Court disagreed Thursday, citing a half-century-old state law that says it is not rape when consent to sexual intercourse is obtained through fraud or deceit.
The high court said the state's rape law defines rape as sexual intercourse compelled ``by force and against (the) will'' of the victim. The court cited a 1959 ruling it made in another case in which it found that fraud cannot be allowed to replace the force required under the law.
The SJC noted that the state Legislature has had ``ample opportunity'' to change the rape statute to include fraud or deceit, but has not done so.
``Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute,'' the court said.
Thursday's ruling came in the case against Alvin Suliveres, a man accused of raping his brother's girlfriend in Westfield in January 2005.
The woman told police she was asleep alone in the bedroom she shared with her longtime boyfriend when a man came in, climbed into bed and had sexual intercourse with her, according to the SJC decision.
The woman said that during the intercourse she believed the man was her boyfriend. Had she known it was the defendant, she would never have consented, she said.
Suliveres claimed the sex was consensual, telling police the woman came to him while he was asleep in another room and invited him to her bedroom to have sex, court documents said.
During his trial, Suliveres asked the judge to find him not guilty, arguing there was not enough evidence for the jury to convict him of rape. The judge denied the motion, and the jury later deadlocked.
Suliveres then asked the court to dismiss the indictment, arguing that because the state had failed to prove its case at the first trial, any retrial would violate the rule against trying someone twice for the same crime.
In its ruling, the SJC sent the case back to Hampden Superior Court to enter an order barring the state from retrying Suliveres.
The current law ``compels the conclusion that there was no evidence of rape in this case,'' the court said in its ruling.
The high court's decision drew sharp criticism from victim advocates.
``If you have sex with someone you didn't agree to have sex with, that's per se nonconsensual,'' said Wendy Murphy, a Boston attorney who teaches a seminar on sexual violence at the New England School of Law.
``In my opinion, the court really did a disservice to women by preserving the ability of a male to literally obtain sex by fraud,'' Murphy said.
But Suliveres' lawyer, Brownlow Speer, said the court correctly interpreted the state's rape law.
``This decision means essentially that regardless of what the morality of it is or what the law should be, this is what the law was at the time of this alleged incident,'' Speer said.
Hampden District Attorney William Bennett said prosecutors in the case had hoped the SJC would overturn its decision in the 1959 case. But he said the court made it clear that it is up to the state Legislature to amend the rape law.
``The statute, as written, requires force and does not allow us to prosecute a case that involves something other than force, such as impersonation,'' Bennett said.
The court noted in its ruling that in most other jurisdictions where the issue has been considered, courts have found that intercourse by fraud does not constitute rape.
EDITORS' NOTE - Denise Lavoie is a Boston-based reporter covering the courts and legal issues.