Is consent considered a defense to indecent assault and battery in Massachusetts? The answer depends on the alleged victim’s age and the statute under which you are charged. For alleged victims 14 or older under M.G.L. c. 265, § 13H, consent is a complete legal defense. The Commonwealth must prove beyond a reasonable doubt that the touching was nonconsensual. If it cannot, the charge cannot result in a conviction.
For alleged victims under the age of 14 under M.G.L. c. 265, § 13B, the law is different. Consent is not a defense because Massachusetts law considers children under 14 legally incapable of consenting to indecent touching. As a result, a defendant’s belief that the contact was consensual does not eliminate criminal liability under § 13B.
If you have been charged with indecent assault and battery, determining whether consent is a legally recognized defense begins with identifying which statute applies to your case. This guide explains how Massachusetts courts analyze consent, the legal elements prosecutors must prove, and why the age of the alleged victim is often the most important factor in the case.
The Two Statutes — and Why Age Changes Everything
Massachusetts law divides indecent assault and battery into two distinct crimes based on the age of the alleged victim.
Victims 14 or older — G.L. c. 265, § 13H.
For a conviction under § 13H, the Commonwealth must prove every element beyond a reasonable doubt, including that the touching occurred without the alleged victim’s consent. Consent is not an affirmative defense you have to prove — it’s an element the prosecution has to disprove. If the Commonwealth cannot establish beyond a reasonable doubt that the touching was nonconsensual, the charge fails. That means if you and the other person were both willing participants, and the jury has reasonable doubt about that, you are not guilty.
Victims under 14 — G.L. c. 265, § 13B.
The statute contains explicit language: “a child under the age of 14 years shall be deemed incapable of consenting.” Consent is not a defense. It doesn’t matter whether the child appeared to agree, said nothing to indicate objection, or even initiated the contact. The law removes consent from the equation entirely, placing § 13B in the same legal category as statutory rape. The SJC confirmed this in Commonwealth v. Knapp, 412 Mass. 712 (1992). Section 13B is also a strict liability offense on the age element — the Commonwealth does not have to prove you knew the person was under 14. See Commonwealth v. Harris, 74 Mass. App. Ct. 105 (2009).
If your charge involves a person under 14, consent is not available to you as a defense, and building your case requires a different approach entirely.
How Consent Is Proven — and Disproven — at Trial
In a § 13H case, consent is a question of fact for the jury. It is determined from the totality of the circumstances — everything the jury hears about what happened before, during, and after the alleged incident.
How the Prosecution Proves Lack of Consent
The Commonwealth typically tries to prove a lack of consent through:
Direct testimony: The alleged victim describes that they did not agree, said no, or tried to pull away.
Evidence of physical resistance: Though notably, the law does not require a victim to physically resist for touching to be nonconsensual.
Digital evidence: Text messages, social media communications, or other evidence of what was communicated before or after the incident.
Witness testimony: Accounts about the circumstances — the setting, the relationship between the parties, and what others observed.
Strategies for Challenging the Evidence
You can challenge the prosecution’s evidence in several ways:
Cross-examination: Questioning the alleged victim is often central to the defense.
Establishing dynamics: Introducing prior communications that show a willing or inviting dynamic, or evidence of a romantic relationship.
Highlighting inconsistencies: Pointing out contradictions in the alleged victim’s account to raise reasonable doubt.
Defendant testimony: If you choose to testify, your account of what was communicated and what you reasonably understood is directly relevant.
The Legal Standard for Evaluating Consent
One important principle: the alleged victim’s failure to say “no” is not the same as consent — but nor is the absence of explicit agreement automatically proof of nonconsent. Courts evaluate the full picture. Whether a reasonable person in your position would have understood the touching to be welcome is part of that analysis.
The Withdrawal of Consent
It’s also worth knowing that consent can be withdrawn. In Commonwealth v. Sherman, 481 Mass. 464 (2019), the SJC held that once a person clearly communicates that they are withdrawing consent — in a manner a reasonable person would understand — any continuation of sexual contact without that consent becomes unlawful.
If the alleged victim argues that they initially agreed and then withdrew consent, that framing introduces its own set of factual questions:
Was the withdrawal clearly communicated?
Would a reasonable person have understood it?
The Alcohol and Intoxication Problem
Cases involving alcohol or drugs on the alleged victim’s part require careful attention. The law draws a sharp line between intoxication and incapacity — and only the latter defeats consent.
In Commonwealth v. Blache, 450 Mass. 583 (2008), the SJC addressed this directly. The court held that mere intoxication is not enough to establish that someone was incapable of consenting. As the SJC put it, “there are many levels of intoxication, and the fact of intoxication, by itself, does not necessarily mean that the individual in question is incapable of deciding whether to assent to a sexual encounter.” The standard requires that the person was “so impaired as to be incapable of consenting” — the intoxication must be extreme.
This matters in two directions.
For the prosecution’s theory of incapacity: If the Commonwealth argues that the alleged victim was too intoxicated to consent, they must prove both that the incapacity was severe and that you knew or reasonably should have known the person was incapable of consenting—Blache, 450 Mass. at 594. The prosecution cannot simply point to the fact that the alleged victim had been drinking. They need evidence of extreme impairment that was observable to you at the time.
For your own state of mind: The law also accounts for the fact that you may have been drinking. In Commonwealth v. Mountry, 463 Mass. 80 (2012), the SJC held that if the prosecution’s theory is that the alleged victim was incapacitated, your own intoxication is relevant to whether you “should have known” of their incapacity. The law does not apply a pure objective standard in incapacity cases — the jury considers what was reasonably knowable to you, given your own state at the time.
This framework means that in a case where both parties were drinking, the facts are genuinely contested and legally complex.
- How intoxicated was the alleged victim, and how visible was that impairment?
- How intoxicated were you?
- What was communicated?
These questions don’t resolve themselves — they require the kind of factual investigation and legal strategy that can make the difference between conviction and acquittal.
What You Should Do If You Believe the Encounter Was Consensual
Being charged does not mean being convicted. If you’re facing a § 13H charge and you believe the encounter was consensual, that belief forms the core of your defense — but it has to be developed carefully, with evidence.
Here are the most important steps to take immediately:
Do not talk to police: Your instinct may be to explain yourself and set the record straight. Resist it. Anything you say before speaking with an attorney can and will be used against you. Statements about consent made without legal counsel rarely help and frequently hurt.
Preserve communications: Text messages, emails, DMs, dating app conversations — anything that reflects what was communicated between you and the alleged victim before, during, or after the incident — can be critical evidence. Do not delete anything. If relevant communications exist on apps that auto-delete, act quickly.
Write down what you remember: Your own recollection of events, captured in detail while it’s fresh, will help your attorney build your defense. This is protected by attorney-client privilege when shared with your lawyer.
Act quickly: The earlier an attorney gets involved, the more options exist for investigating the facts, gathering evidence, and challenging the Commonwealth’s case before it fully develops.
Facing a Consent Defense Indecent Assault and Battery Charge in Massachusetts
A charge of indecent assault and battery is serious. A conviction can mean prison, probation, mandatory sex offender registration, and consequences that follow you for years. But a charge is not a conviction — and if the encounter was consensual, that is a defense the law recognizes.
If you’re facing this charge, speaking with an experienced criminal defense attorney in Boston as soon as possible can make a significant difference in protecting your rights and preparing your defense. The Law Office of Matthew W. Peterson offers free consultations. We represent clients throughout Suffolk, Essex, Middlesex, and Norfolk Counties. Call or text 617-295-7500, or send us a message below.
