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.