Commonwealth v. Sherry

386 Mass. 682, 437 N.E. 2d 224 (1982)

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Nature of the Case

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Facts

The victim, a registered nurse, and Ds, all doctors, were employed at the same hospital in Boston. Sherry (D), whom the victim knew professionally, with another doctor was a host at a party in Boston for some of the hospital staff on the evening of September 5, 1980. The victim was not acquainted with the Hussain (D1) and Lefkowitz (D2) prior to this evening. She had a conversation with D1 at the party, during which he made sexual advances toward her. D and D1 pushed her and D2into a bathroom together, shut the door, and turned off the light. They did not open the door until D2 asked them to leave her in peace. At various times, the victim had danced with both D and D1. Eventually, D and D1 grabbed her by the arms and pulled her out of the apartment as D2 said, 'We're going to go up to Rockport.' The victim verbally protested but did not physically resist the men because she said she thought that they were just 'horsing around' and that they would eventually leave her alone. D1 carried her over his shoulder to D's car and held her in the front seat as the four drove to Rockport. En route, she engaged in superficial conversation with the Ds. She was not in fear at this time. When they arrived at D2's home in Rockport, she asked to be taken home. D1 carried her into the house. In the house, the victim and two of the men smoked some marijuana, and all of them toured the house. D2 invited them into a bedroom to view an antique bureau, and, once inside, the three men began to disrobe. She became scared and verbally protested, but the three men proceeded to undress her and maneuver her onto the bed. One of the defendants attempted to have the victim perform fellatio while another attempted intercourse. She told them to stop. At the suggestion of one of the defendants, each defendant separately had intercourse with the victim in the bedroom. The victim testified that she felt physically numbed and could not fight; she felt humiliated and disgusted. After this sequence of events, the victim claimed that she was further sexually harassed and forced to take a bath. D2 then told the victim that they were returning to Boston because D1 was on call at the hospital. On their way back, the group stopped to view a beach, to eat breakfast, and to get gasoline. The victim was taken back to where she had left her car the prior evening, and she then drove herself to an apartment that she was sharing with another woman. Their version stated that D2 invited D to accompany him from the party to a home that his parents owned in Rockport. The victim was present and inquired as to whether she could go along. D extended an invitation to D1. When in the bedroom, she sat down on the bed and kicked off her shoes, whereupon D entered the room, dressed only in his underwear. D helped the victim get undressed, and she proceeded to have intercourse with all three men separately and in turn. Ds were convicted and appealed.