# Commonwealth v. Manning > Massachusetts Supreme Judicial Court · May 2, 1975 · 367 Mass. 605 URL: https://www.frixlaw.com/law-library/cases/9712863 ## Case - **Full name:** Commonwealth vs. Edward J. Manning - **Court:** Massachusetts Supreme Judicial Court - **Decided:** May 2, 1975 - **Citations:** 367 Mass. 605; 327 N.E.2d 715; 1975 Mass. LEXIS 876 - **Precedential status:** Published - **Opinion:** Dissent by Braucher - **Judges:** Tauro, Reardon, Braucher, Kaplan, Wilkins - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712863 ## Opinion text Braucher, J. (dissenting). I think the exceptions should be overruled on the indictments for sodomy, unnatural and lascivious acts, and assault and battery, for the reasons given by the Appeals Court: “The excluded testimony . . . bore only on the issue of consent, not on veracity. Wigmore, Evidence, § 924b (B) (Chadbourn rev. 1970). The convictions on the other indictments are therefore not affected by the error.” In view of the extended discussion of the point by the court, some elaboration of these reasons is appropriate. The “established law” on which the court’s opinion rests is part of a legal tradition, established by men, that the *614 complaining woman in a rape case is fair game for character assassination in open court. Its logical underpinnings are shaky in the extreme. See, for example, People v. Abbott, 19 Wend. 192, 195 (N. Y. 1838): “And will you not more readily infer assent in the practised Messalina, in loose attire, than in the reserved and virtuous Lucretia?” As to the rule that “an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of . . . consent in a case of rape,” see Federal Rules of Evidence 404, Advisory Committee’s Note (1973): . “While its basis lies more in history and experience than in logic, an underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. . . . [Citations omitted.] In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.” Dean Wigmore, who was as enthusiastic as anyone about the rule, recommended radical changes in related rules. See Wigmore, Evidence, § 924a (Chadbourn rev. 1970). Others have been still more critical: “Character evidence, while purporting to protect an accused, is actually a ruse whereby a jury’s attention is diverted from the particulars of a defendant’s actions at the time of an alleged sexual assault to the complainant’s past life and conduct.” Comment, 64 J. Crim. L. & Criminology 67 , 75 (1973). Cf. Comment, 62 Yale L. J. 55, 79, 82 (1952); Note 81 Yale L. J. 1365, 1390-1391 (1972). There is some authority for rejecting entirely evidence of general reputation for chastity. State v. Allen, 66 Wash. 2d 641, 643 (1965). So far as I can discover, we have not set aside a conviction because of the exclusion of evidence of a victim’s reputation for unchastity since Commonwealth v. Kendall, 113 Mass. 210 (1873). Our opinions, like those in most States, have paid lip service to the rule, but our decisions have carefully limited it. See Wigmore, supra, *615 § 924b (B): “The following rules do permit” data on disposition to chastity “to come in, but not as affecting veracity of the witness; they come in for other issues, though no doubt they have received in argument, by evasion, some use as affecting veracity: 1. On a charge of rape, the woman’s consent being in issue, her character for unchastity may be received (§ 62 supra); but not on a charge of rape under age, assault with intent, etc;” (emphasis in original). Though specific acts of unchastity have more direct relevance to consent than mere reputation, we have held evidence of such acts inadmissible. Commonwealth v. Regan, 105 Mass. 593 (1870). See Commonwealth v. McKay, 363 Mass. 220, 226-227 (1973). Where consent was not in issue, as in bastardy cases, we have excluded the evidence of reputation for unchastity. Parker v. Dudley, 118 Mass. 602, 604 (1875). More important for the present purpose is whether reputation for unchastity can be used to affect veracity. In an early case we held that a witness for a defendant in a rape case could be shown to be “notoriously a common prostitute,” since she “must necessarily have greatly corrupted, if not totally lost, the moral principle.” Commonwealth v. Murphy, 14 Mass. 387, 388 (1817). Cf. State v. Sibley, 131 Mo. 519, 531 (1895): “It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman.” But Chief Justice Shaw long ago wrote for this court an opinion overruling the Murphy case and repudiating its doctrine. Commonwealth v. Churchill, 11 Met. 538 , 539 (1846). Unfortunately, however, the court’s opinion in the present case, by subtle indirection, breathes new life into the doctrine long ago abandoned. The trouble is that the court reasons logically, using an illogical rule as its major premise. The result, not surprisingly, is an illogical conclusion. If the jury had *616 heard testimony, as to the victim’s “reputation in the community for being chaste or unchaste,” that “the reputation isn’t that great,” and that she “had a bad reputation,” they might legitimately have drawn the inference that she had consented to sexual intercourse. From this inference, says the court, they might further have inferred that her testimony that she did not consent was false, and therefore that everything she said was false. From this conclusion, the jury might have reasoned that she had consented to a romp in the back seat of an automobile and that her visible bite and bruises had been acceptable incidents of that romp. Reliance is placed on a dictum in a Minnesota case where the holding was that a jury could properly reject a similarly attenuated chain of inference. State v. Stevens, 248 Minn. 309, 313 (1956). Defense counsel doubtless took a less fanciful view. Confronted by evidence of visible bite and bruises, unable to put his defendant on the witness stand, 1 he could have had little hope of convincing a rational juror that there was a reasonable doubt whether there had been a forcible rape. But the jury “closely, and often harshly, scrutinizes the female complainant and is moved to be lenient with the defendant whenever there are suggestions of contributory behavior on her part. ... If given the option of finding a lesser offense, the jury will avail itself of it. However, if this option is not available, the jury appears to prefer to acquit the defendant rather than to find him guilty of rape. . . . There are cases in which the situation is clearly aggravated by extrinsic *617 violence, but the jury is still lenient to the defendant.” Kalven & Zeisel, The American Jury, 249-251 (1966). For an illustration of conviction of a lesser offense in such a case, see Commonwealth v. LaBella, 364 Mass. 550, 551, n. 1 (1974). Cf. Amir, Victim Precipitated Forcible Rape, 58 J. Crim. L., Criminology & Police Science 493, 502 (1967). The court suggests that, if the rape charge had been tried separately from the other charges, the present result might have been avoided, and that the Commonwealth may have invited the result by prosecuting all the charges together. Thus to encourage separate trials serves no legitimate interest of the prosecutor, the defendant, the judicial system, or the public. The suggestion serves to emphasize the artificial character of the reasoning and the new anomaly it introduces into what is already an unsatisfactory body of law. See A. B. A. Summary of Action of the House of Delegates, February 24-25, 1975, p. 22, and (March 4, 1975) 43 U. S. L. Week 2362. It is not clear from the bill of exceptions whether the probable reason was suggested to the jury. At a voir dire on identification, a police officer testified that the defendant’s picture was in a “mug shot book of people who had been incarcerated,” and that he “had been in trouble once before in a similar incident.” Thereafter the jury was reconvened and the police officer resumed his testimony, “describing the events related on voir dire.” No question of error in this respect is argued to us. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712863. Public record. Not legal advice.