Commonwealth v. Hraiz

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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.