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23-P-1230 Appeals Court
COMMONWEALTH vs. JOSEPH HRAIZ.
No. 23-P-1230.
Suffolk. January 6, 2025. – April 23, 2026.
Present: Rubin, Henry, & Walsh, JJ.
Rape. Consent. Practice, Criminal, Instructions to Jury, Required finding.
Indictments found and returned in the Superior Court Department on December 15, 2021.
The cases were tried before Kathleen M. McCarthy-Neyman, J.
Robert L. Sheketoff for the defendant. David D. McGowan, Assistant District Attorney, for the Commonwealth.
HENRY, J. In this rape case involving college students who
had been friends for years, the defendant, Joseph Hraiz, argues
that the jury should have been instructed that constructive
force is not determined solely by the alleged victim's
subjective state of mind or feelings of fear, but also that her
fear must be objectively reasonable. The defendant contends 2
that if the alleged victim's fear is irrational or objectively
unreasonable, then there was no force, actual or constructive.
The defendant's argument would add an element to the rape
statute, G. L. c. 265, § 22 (b), which we decline to do.
Commonwealth v. Fano, 400 Mass. 296, 305-306 (1987) ("It was
appropriate for the judge to refuse to give the requested
instruction because it was incorrect as a matter of law"). The
defendant also contends that the trial judge erred in denying
the defendant's motion for required findings of not guilty at
the close of the Commonwealth's case and at the close of the
defendant's case. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979).
The victim and the defendant met during their first year at
Boston University when they were introduced by a mutual friend,
Megan. The victim, the defendant, and Megan were best friends
until the events in question occurred during their senior year.
The defendant and victim had never had a romantic relationship.
On April 24, 2021, the defendant, the victim, and Megan
drank heavily in Megan's dorm room, and the victim smoked
marijuana. The plan was for the defendant to sleep over because
the defendant lived with his parents off campus. By 10:30 P.M.,
the victim had fallen asleep in Megan's bed. She occasionally 3
woke up but fell right back asleep. Around midnight, Megan and
the defendant decided to go to bed. Megan woke the victim, who
said she was too tired to walk home. Megan told the victim that
she could spend the night if she was willing to sleep on the
floor. As the defendant and Megan were getting ready for bed,
the victim fell back asleep on the blankets and pillow Megan had
laid out on the floor beside the defendant's sleeping bag.
In the middle of the night, the victim awoke to her shirt
pulled up around her neck and the defendant grabbing her breasts
and pinching her nipples. It was painful. The victim testified
that, as the defendant was grabbing her, she was "terrified" and
"just froze." The defendant did not say anything. The victim
did not consent to this or any touching that followed. The
victim did not move or speak or even open her eyes. The
defendant pushed his hand down into the victim's underwear and
inserted two fingers into her vagina. Then, the defendant
pulled down the victim's shorts and underwear and put his mouth
on and his tongue into her vagina. Throughout, neither the
victim nor the defendant said anything, and the victim remained
still. The victim described the incident as going on for what
"felt like forever" and said that she was "terrified" and
"confused." The victim also testified that she "kept trying to
tell [her]self that . . . [she] knew [the defendant] and that he
wouldn't hurt [her]," but then realized that he was "literally 4
hurting [her]." The victim testified that her mouth was so dry
from smoking marijuana that she could not clear her throat. She
worried that if she yelled and Megan did not wake up, the
defendant, who was physically stronger than she was, might
panic.
After the defendant removed his mouth from the victim's
vagina, he slapped her "ass," attempted to pull up her
underwear, and went to the bathroom. The victim remained still
after the sexual assault, fell asleep on the floor, and left the
dorm room early the following morning. Later that morning, the
victim called Megan crying and told her that the defendant was
"grabbing [her] and that he'd fingered [her] and eaten [her] out
and [she] didn't know why."
Later that evening, the defendant texted the victim that he
"just wanted to say sorry for being super touchy during the
night, because I'm not sure if that would have been something
you would have wanted if you were fully sober." Over the course
of the next few days, the defendant texted Megan in an effort to
solicit her help with making amends with the victim, stating,
"I can't explain how my mind and heart have been going crazy and are in pain the past few days because of how I sexually assaulted [the victim]. It was a huge mistake, and I know how serious this is. . . . . If there's anything I can do, please let me know. I need your guidance." 5
During the same period of time, the defendant also reached out
to another mutual friend, Anna, for help, stating, "[I]s there
anything I can do to do some sort of healing? [I know] it is
sexual assault, and I want to try to make things better for [the
victim]."
The defendant testified in his own defense; his version of
events was very different from the victim's. He testified that
he woke up in the night when the victim initiated sexual contact
and that she was an active participant in what transpired.
Following a jury trial in Superior Court, the defendant was
convicted of two counts of rape, G. L. c. 265, § 22 (b), and one
count of indecent assault and battery, G. L. c. 265, § 13H.1
Discussion. The rape statute "requires the Commonwealth to
prove beyond a reasonable doubt the defendant (1) engaged in
sexual intercourse[2] with the victim; (2) by force or threat of
force; and (3) against the victim's will." Commonwealth v.
Campbell, 494 Mass. 750, 754 (2024). See G. L. c. 265,
§ 22 (b). In this case, at trial, the fact of intercourse was
undisputed. On appeal, it also is undisputed that the victim
did not consent to sexual intercourse. The defendant's appeal
1 The defendant does not challenge his conviction of indecent assault and battery.
2 Sexual intercourse includes oral and digital intercourse. See Commonwealth v. Gallant, 373 Mass. 577, 584 (1977). 6
focuses on the jury instruction on constructive force and
whether there was sufficient evidence of the element of force.3
"Proof of the force element of rape . . . may be
established by physical force or constructive force."
Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254 (2008).
See Commonwealth v. Caracciola, 409 Mass. 648, 652-653 (1991).
As the Supreme Judicial Court has explained, "actual force is
applied to the body, constructive force is by threatening words
or gestures and operates on the mind" and may arise from "the
circumstances or fear in which the victim is placed, the impact
of those circumstances or fear on the victim's power to resist
and the defendant's conduct" (citation omitted). Caracciola,
supra at 651-652. A victim is not required to use any force to
resist, see Commonwealth v. Lopez, 433 Mass. 722, 729 (2001),
and the rape statute applies to a person "frozen by fear as well
as victims who are otherwise incapacitated" (citation omitted).
3 At sidebar, in response to the defendant's motion for required findings of not guilty, the Commonwealth agreed it was not arguing physical force and was proceeding on only an implied force theory. This complicated the case unnecessarily because "in situations where the victim is intoxicated, asleep, or otherwise incapable of providing consent, the only force that need be shown is the force necessary to accomplish the act." Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 417 (2010), citing Commonwealth v. Blache, 450 Mass. 583, 591-592 (2008). See Campbell, 494 Mass. at 758. Cf. Commonwealth v. Feijoo, 419 Mass. 486, 493 (1995) (where rape occurs suddenly without warning, and thereby without victim "having had an opportunity to consent or object," there is rape by force). 7
Campbell, 494 Mass. at 759. "[N]o force beyond what is required
for the act of penetration is necessary to accomplish the crime
of rape where the victim is incapacitated." Id. at 758.
"To prove constructive force, the Commonwealth must show
that the victim was afraid or submitted to the defendant because
the defendant's conduct intimidated the victim." Commonwealth
v. Testa, 102 Mass. App. Ct. 149, 152 (2023), citing
Commonwealth v. Vasquez, 462 Mass. 827, 846 (2012). Relevant
circumstances may include (1) any threatening words or conduct,
which need not be of a "direct and immediate nature,"
Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 539 (2013), cert.
denied, 571 U.S. 1221 (2014); (2) "the historical and contextual
relationship between the victim and the defendant," Testa, supra
at 152; (3) any age or size difference between the defendant and
victim, see Armstrong, 73 Mass. App. Ct. at 255; and (4) the
"manner and means by which the rape [was] perpetrated," id.
"The ultimate question is whether 'the defendant compelled the
victim to submit'" (citation omitted). Testa, supra at 152.
With this legal context in mind, we turn to the defendant's
arguments.
1. Jury instruction. The defendant contends that the
judge erred in denying the defendant's request for a jury
instruction that specified that the victim's "fear of force
could not be simply subjective." He argued at trial that her 8
fear had to be "non-subjective," and that without this
instruction, the jury were not required to determine whether the
victim's fear was rational or reasonable.
Generally, a "judge is not required to grant a particular
instruction so long as the charge, as a whole, adequately covers
the issue" (citation omitted). Commonwealth v. Cruz, 445 Mass.
589, 597 (2005). "Because the defendant raised a timely
objection to the judge's instruction to the jury, we review his
claim for prejudicial error." Commonwealth v. Allen, 474 Mass.
162, 168 (2016).4 A judge's refusal to give a requested jury
instruction is reversible error only if the requested
instruction is "(1) substantially correct, (2) was not
substantially covered in the charge given to the jury, and
(3) concerns an important point in the trial so that the failure
to give it seriously impaired the defendant's ability to
effectively present a given defense" (emphasis omitted).
Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013),
quoting Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519
(1993).
4 The Commonwealth errs in relying on Commonwealth v. Robinson, 493 Mass. 775, 794 (2024), to argue that the standard of review is abuse of discretion. The Supreme Judicial Court was merely summarizing the defendant's argument in that case -- not stating the governing standard of review. 9
The defendant relies on language in Commonwealth v. Sherry,
386 Mass. 682 (1982), in which the Supreme Judicial Court
observed that jury instructions stating that "intercourse must
be accomplished with force 'such [as] to overcome the woman's
will; that it be sufficient to accomplish the man's purpose of
having sexual intercourse against her will' or by threats of
bodily harm, inferred or expressed, which engendered fear
'reasonable in the circumstances . . . so that it was reasonable
for her not to resist'" correctly stated the elements of proof
required for a rape conviction. Id. at 696.
The defendant's reliance is misplaced. The language in
Sherry that the woman's fear had to be reasonable in the
circumstances was dicta and therefore not precedential. See
Commonwealth v. Lewis, 497 Mass. 90, 95 (2026) (language in
judicial opinions only binding if accompanied by rationale);
Kligler v. Attorney Gen., 491 Mass. 38, 71 (2022) ("Of course,
the statement undoubtedly was dictum and therefore is not a
controlling statement of law"); Old Colony Trust Co. v.
Commissioner of Corps. & Taxation, 346 Mass. 667, 676 (1964)
("We do not feel bound to adhere to language which was
unnecessary to . . . two earlier decisions, . . . and which
passed upon an issue not really presented in either case");
Crocker v. Justices of the Superior Court, 208 Mass. 162, 173
(1911) (although dicta "are entitled to respect, they are not of 10
binding authority, and . . . not to be regarded as of
controlling significance"). See also Black's Law Dictionary 570
(12th ed. 2024) ("obiter dictum" is "[a] judicial comment . . .
that is unnecessary to the decision in the case and therefore
not precedential"). But cf. Commonwealth v. Marquis, 495 Mass.
434, 455 n.15 (2025), cert. denied, U.S. Supreme Ct., No. 25-
5280 (Jan. 12, 2026), quoting McRorey v. Garland, 99 F.4th 831,
837 (5th Cir. 2024) (on precedential force of footnote 9 in New
York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 38 n.9
[2022], "[plaintiffs] characterize passages such as footnote 9
as dicta. We [the 5th Circuit], however, are generally bound by
Supreme Court dicta, especially when it is recent and detailed[,
a]nd it doesn't get more recent or detailed than Bruen");
Marquis, supra, quoting Maryland Shall Issue, Inc. v. Moore, 116
F.4th 211, 221-222 (4th Cir. 2024) ("We are not free to ignore
the Supreme Court's substantive dictum [in Bruen] on 'shall-
issue' licensing laws . . . [and s]o, in accord with the Supreme
Court's 'shall-issue' discussion, we hold that non-discretionary
'shall-issue' licensing laws are presumptively constitutional").
In Sherry, the issue before the court was whether the trial
judge erred in declining to give two jury instructions "exactly
as requested" by the three defendants. Sherry, 386 Mass. at
696. Neither of the requested instructions stated that the
victim's fear had to be reasonable. See id. at 696 & n.8. In 11
analyzing the defendants' claim, the Supreme Judicial Court
considered the instruction that the trial judge had actually
given, and held that, viewed in its entirety, it adequately
stated the elements of rape. Id. at 696. The court's
recitation of that instruction did not resolve whether a
victim's fear must be reasonable where that issue was neither
analyzed nor raised. In fact, this court held in a separate,
later appeal by two of the defendants from Sherry that the
instruction given by the trial judge may have exceeded the
specifications of the statute. Commonwealth v. Lefkowitz, 20
Mass. App. Ct. 513, 518-520 (1985).5
5 In Felix F. v. Commonwealth, 471 Mass. 513 (2015), the Supreme Judicial Court cited Sherry for the proposition that "[f]or purposes of the rape statute . . . 'threats of bodily harm' may be expressed or implied, so long as it is reasonable in the circumstances for the complainant to be in fear and not resist." Id. at 518. This, too, was dicta. The question before the court in Felix F. was the meaning of "threat" under the youthful offender statute, G. L. c. 119, § 54; the elements of rape were not at issue. Id. at 514. The court held "that the definition of 'threat' in the juvenile offender statute requires a communication or declaration, explicit or implicit, of an actual threat of physical injury by the juvenile." Id. at 516. In reaching that conclusion, the court surveyed cases interpreting "threat" in other statutory contexts, including rape, civil rights, and criminal threat statutes. Id. at 518. It was within that survey that the court referenced Sherry to illustrate that a "threat" must stem from the defendant's conduct and its effect on a victim rather than a generalized potential for harm. The court's holding rested on its interpretation of G. L. c. 119, § 54, and its conclusion that the juvenile's drug offense did not communicate a threat to an identifiable victim. Id. at 517. The reference to Sherry had no bearing on that holding and was not necessary to the court's resolution of the case. 12
What is paramount is that the rape statute, G. L. c. 265,
§ 22, does not require that the victim's fear be objectively
reasonable. As the Supreme Judicial Court explained in Vasquez,
462 Mass. at 846, "[c]onstructive force requires 'proof that the
victim was afraid or that she submitted to the defendant because
his conduct intimidated her'" (citation omitted). The crime of
rape "necessarily includes the rape of both victims frozen by
fear, as well as victims who are otherwise incapacitated"
(citation omitted). Campbell, 494 Mass. at 759. Accordingly,
the statute protects all victims who submit out of fear or
intimidation, even if a hypothetical reasonable person might not
have been frightened under the same circumstances. Cf.
Commonwealth v. Lopez, 433 Mass. 722, 727-728 (2001) (rape
statute does not require proof of defendant's knowledge of
victim's lack of consent as element of offense); Commonwealth v.
Cordeiro, 401 Mass. 843, 851 n.11 (1988) ("The Commonwealth is
not required to prove either that the defendant intended the
sexual intercourse be without consent or that he had actual
knowledge of the victim's lack of consent"); Commonwealth v.
Grant, 391 Mass. 645, 650 (1984) (express language of G. L.
c. 265, § 22 (b), does not require specific intent that
intercourse be without consent).
Indeed, we upheld a rape conviction in a case under a
theory of constructive force where the child victim had 13
testified that "she was not threatened by the defendant and was
not scared by him."6 Armstrong, 73 Mass. App. Ct. at 256. We
reasoned that the fact "the victim endured the rapes with
resignation and with no will to resist the defendant's sexual
exploitation [was] reflective of the very nature of the
application of constructive force with respect to the crime of
rape of a young person." Id. See Commonwealth v. Newcomb, 80
Mass. App. Ct. 519, 523-524 (2011) (history of repeated sexual
abuse by parent against child established constructive force
even after she reached adulthood and, as such, lack of consent).
Good reason exists not to require that the victim's fear be
objectively reasonable. First, while some people "respond to
sexual assault with active resistance, others 'freeze,' and
'become helpless from panic and numbing fear'" (citation
omitted). People v. Iniguez, 7 Cal. 4th 847, 855 (1994). Of
course, people who actively resist and people who freeze can
both be afraid. As the Kansas Supreme Court recently explained
in interpreting a similar rape statute, "[t]he concept of fear
is inherently subjective because people experience fear in
different ways; there is no one, uniform way to be afraid that
can be objectively measured. After all, '[w]hat renders one
person immobilized by fear may not frighten another at all.'"
6The victim was fourteen or younger at the time of the rapes. Armstrong, 73 Mass. App. Ct. at 247-248. 14
(citation omitted). State v. Ninh, 320 Kan. 477, 491 (2025).
Second, "[o]ne who takes advantage of a victim's unreasonable
fears of violence [to accomplish sexual intercourse without
consent] should not escape punishment" (citation omitted).
Salsman v. Commonwealth, 565 S.W.2d 638, 641 (Ky. App. 1978).7
Courts in other jurisdictions have taken this approach when
their respective rape statutes did not include an express
requirement that the victim's fear be reasonable. See, e.g.,
Clark v. State, 261 Ga. 311, 312 (1991) ("The question is not
. . . whether the victim's apprehension was reasonable. The
question is whether the state has proved, beyond a reasonable
doubt, that the acts of the accused were not freely consented to
7 The defendant did not seek an instruction on any requirement that he knew or should have known of the victim's fear, something some states appear to require. See, e.g., Md. Code, Crim. Law § 3-301.1 (b) (5) ("submission as a result of fear, . . . does not constitute consent if the individual alleged to have performed the act in violation of this subtitle knows or reasonably should know that the victim would submit as a result of fear . . . ."); People v. Barnes, 42 Cal. 3d 284, 304 n. 20 (1986) ("even a complainant's unreasonable fear of immediate and unlawful bodily injury may suffice to sustain a [rape] conviction . . . if the accused knowingly takes advantage of that fear in order to accomplish sexual intercourse"). As the issue is not raised here, we express no opinion on it. Cf. Lopez, 433 Mass. at 727-728 ("G. L. c. 265, § 22, does not require proof of a defendant's knowledge of the victim's lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense . . . . Any perception [reasonable, honest, or otherwise] of the defendant as to the victim's consent is consequently not relevant to a rape prosecution"). 15
by the alleged victim. This is a question of fact . . . .");
Salsman, 565 S.W.2d at 641 ("In determining whether [the victim]
submitted to [the defendant] because of an implied threat which
placed [the victim] in fear of immediate death or physical
injury, a subjective rather than objective standard must be
applied"); Dinkens v. State, 92 Nev. 74, 79 (1976) ("So long as
the evidence establishes that the victim was induced to submit
to the sexual acts by actual fear, whether a 'reasonable' woman
under such circumstances would have experienced the same fear is
not a determination that courts and juries have to make").8
Here, the judge's instruction to the jury on constructive
force tracked the model instruction on rape and was a correct
statement of the law of this Commonwealth. See Dumas, 83 Mass.
App. Ct. at 540 ("There was no error in the judge's instruction
to the jury on consent and constructive force, which tracked the
model instruction on rape nearly verbatim and was a correct
statement of the law of this Commonwealth. . . . [T]he law
regarding constructive force long has been established"). The
relevant portion of the jury instruction on actual or
constructive force, or as indicated by the judge, "implied
force," stated:
8 We note that this approach focuses the fact finder squarely on the conduct of the perpetrator rather than the perceived appropriateness of the victim's reaction. 16
"The second element the Commonwealth must prove is that [the defendant] used force or threat of force or bodily injury, actual or implied, to compel [the victim] to submit to sexual intercourse. To prove that [the defendant] used actual force to penetrate [the victim], the Commonwealth must prove that [the defendant] used enough physical force to overcome [the victim's] ability to resist. To prove that [the defendant] used the threat of force to penetrate [the victim], the Commonwealth must prove that [the defendant] used a threat of bodily harm to compel [the victim] to submit to penetration.
"To prove that [the defendant] used implied force to compel [the victim] to submit to intercourse, the Commonwealth must convince you that [the victim] submitted to the intercourse because she was afraid of or intimated [sic][9] by [the defendant]. Implied force is the use of threatening words, gestures, or actions or other circumstances to overcome another's will. Implied force operates to instill fear and to make someone have intercourse without that person's consent.
"To establish that [the defendant] used implied force, the Commonwealth must prove that [the victim] submitted to the sexual intercourse because she was afraid or intimidated by [the defendant's] words, gestures, or actions. You may consider all the circumstances, including each person[']s age and size, and the whole relationship between them in deciding whether [the defendant] used implied force. An examination of the circumstances or fear in which [the victim] is placed, the impact of those circumstances or fear on her power to resist, and [the defendant's] conduct are all relevant to the determination of whether the conduct complained of by [the victim] was accomplished by force and against her will."
This implied force instruction allowed the jury to consider
the entire circumstances of the alleged assault. That
necessarily included whether the actions of the defendant
9 We take this to mean "intimidated." Three sentences later, the judge used "afraid or intimidated." 17
induced fear in the victim and placed the victim in such fear
that her will was overcome. Here, the defendant was free to
argue all of the circumstances and challenge the credibility of
the victim, and he did. He also argued that there was no
reasonable basis for her fear. Whether a "reasonable" woman
would have experienced the same fear is not a determination the
jury has to make, and the defendant did not succeed with this
argument. We discern no error.
2. Motions for required findings of not guilty. The
defendant argues that the judge erred in denying his motions for
required findings of not guilty made at the close of the
Commonwealth's case and at the close of all the evidence. Both
motions were properly denied.
When reviewing the denial of a motion for required finding
of not guilty at the close of the Commonwealth's case, we
"consider the evidence in the light most favorable to the
Commonwealth to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175
(1992). See Latimore, 378 Mass. at 676-677.
We conclude that the evidence, taken in the light most
favorable to the Commonwealth, was sufficient for the jury to
have found proof of force beyond a reasonable doubt. The victim
suddenly awoke to the defendant pressed up against her back and 18
painfully pinching her nipples. She testified that she felt
"terrified," "confused," and "just froze."10 While the victim
lay immobile, not speaking or reciprocating, the defendant
removed her shorts and underwear and painfully penetrated the
victim's vagina with two fingers and then with his tongue.
After a period of time, the defendant removed his tongue from
her vagina, slapped her buttocks, partially pulled her underwear
and shorts back up, kissed her on the neck and cheek, and left
the room. The victim also testified that the defendant was
physically stronger than she was and regularly discussed going
to the gym and working out.
Given this evidence and the jury instructions, the jury
could have found that the defendant used constructive force.
The jury could have found that the victim did not consent and
submitted to the defendant's painful conduct because his acts
instilled fear in her that caused her to freeze and thereby
compelled her to submit. See Caracciola, 409 Mass. at 655 n.10
(constructive force established by evidence "that the
intercourse resulted from the coercive atmosphere and fear of
10During trial, the Commonwealth conceded that it did not pursue a theory of incapacitation and inability to form consent caused by the victim's ingestion of marijuana or alcohol. However, we are still able to consider the substances she consumed as it impacted the victim's ability to resist in the context of constructive force. Sherry, 386 Mass. at 688. 19
the complainant as a result of the words and conduct of the
defendant"). The judge did not err in denying the motion for
required findings of not guilty at the close of the
Commonwealth's case.
When the defendant renewed his motion for required findings
of not guilty after presenting his case, which consisted solely
of his own testimony of the events of the night, he failed to
deteriorate the Commonwealth's case. Commonwealth v. Nhut
Huynh, 452 Mass. 481, 485 (2008) ("Deterioration does not occur
simply because the defendant presented evidence that
contradicted the Commonwealth's case"). The judge did not err
in denying the motion for required findings of not guilty at the
close of the defendant's case.
Judgments affirmed.