Commonwealth v. Lopez

Facts

On May 8, 1998, a seventeen year old girl, living in a foster home, walked to a restaurant and met the defendant. He offered to walk her home.

The two walked to a nearby park but the girl was afraid her foster mother would get upset about bringing a guy near the house, so the defendant suggested they walk to the woods. At one point, deep into the woods, the girl said that she wanted to go home but the defendant told her nothing would happen and he would not hurt her. He led her to a secluded area.

The defendant asked the victim why she was so distant and then began making sexual innuendos. He grabbed her by her wrist and began kissing her on the lips. She pulled away and said, “No, I don’t want to do this.” The defendant then told the victim that if she “had sex with him, [she] would love him more.” She repeated, “No, I don’t want to. I don’t want to do this.” He raised her shirt and touched her breasts. She immediately pulled her shirt down and pushed him away. He then pushed her against a slate slab, unbuttoned her pants, and pulled them down. Using his legs to pin down her legs, he raped her, and she began to cry. A few minutes later, the victim made a “jerking move” to her left. The defendant became angry and pushed her face into the slate, and raped her again. The treating physician described the bruising to the victim’s knees as significant and noted that there was “excessive force and trauma to the [vaginal] area.”

The defendant told the victim that she “would get in a lot of trouble” if she said anything. He then grabbed her by the arm, kissed her, and said, “I’ll see you later.” The victim went home and showered. She told her foster mother, who immediately dialed 911.

The defendant testified that the victim had been a willing and active participant of the encounter, and never once told him to stop. He requested a mistake of fact instruction as to consent. The judge declined, and he was convicted of rape.