[424] Carol M. Henderson, Deputy Attorney General, argued the cause for appellant, State of New Jersey (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Jessica S. Oppenheim, Deputy Attorney General, of counsel and on the brief).

Susan Herman, Assistant Deputy Public Defender, argued the cause for respondent M.T.S. (Wilfredo Caraballo, Public Defender, attorney).

The opinion of the Court was delivered by HANDLER, J.

Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by [425] this appeal is whether the element of "physical force" is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J. Super. 254, 588 A.2d 1282 (1991). We granted the State's petition for certification. 126 N.J. 341, 598 A.2d 897 (1991).

I

The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.

On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept [426] downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager's testimony.

C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.

[427] C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.

At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.

According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."

M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as [428] C.G. pushed him off, she said "stop, get off," and he "hopped off right away."

According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving ... I'm going with my real girlfriend, don't talk to me ... I don't want nothing to do with you or anything, stay out of my life ... don't tell anybody about this ... it would just screw everything up." He then walked downstairs and went to sleep.

On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.

Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed [429] the juvenile's adjudication of delinquency for that offense. 247 N.J. Super. at 260-61, 588 A.2d 1282.

II

The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual penetration" "with another person" with the use of "physical force or coercion."^[1] An unconstrained reading of the statutory language indicates that both the act of "sexual penetration" and the use of "physical force or coercion" are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be [430] understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that "physical force" had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.

The parties offer two alternative understandings of the concept of "physical force" as it is used in the statute. The State would read "physical force" to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of "physical force" to mean force "used to overcome lack of consent." That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.

Current judicial practice suggests an understanding of "physical force" to mean "any degree of physical power or strength used against the victim, even though it entails no injury and leaves no mark." Model Jury Charges, Criminal 3 (revised Mar. 27, 1989). Resort to common experience or understanding does not yield a conclusive meaning. The dictionary provides several definitions of "force," among which are the following: (1) "power, violence, compulsion, or constraint exerted upon or against a person or thing," (2) "a general term for exercise of strength or power, esp. physical, to overcome resistance," or (3) "strength or power of any degree that is exercised without justification or contrary to law upon a person or thing." Webster's Third New International Dictionary 887 (1961).

Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words "physical force" do not evoke a single [431] meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42, 342 A.2d 199 (1975). With respect to a law, like the sexual assault statute, that "alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy." Grobart v. Grobart, 5 N.J. 161, 166, 74 A.2d 294 (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98, 155 A.2d 547 (1959) (noting that ambiguous statutory phrases should be interpreted in light of the occasion and necessity of the law, mischief felt, and remedy in view). We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature. See State v. Des Marets, 92 N.J. 62, 68-70, 455 A.2d 1074 (1983); State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956).

The provisions proscribing sexual offenses found in the Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), became effective in 1979, and were written against almost two hundred years of rape law in New Jersey. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as "carnal knowledge of a woman against her will." Cynthia A. Wicktom, Note, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender's Forceful Conduct). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim's will. Id. at 402 [432] (citing Rollin Perkins & Ronald Boyce, Criminal Law 211 (3d ed. 1982)). As of 1796, New Jersey statutory law defined rape as "carnal knowledge of a woman, forcibly and against her will." Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape — carnal knowledge, forcibly, and against her will — remained the essential elements of the crime until 1979. Leigh Bienen, Rape III — National Developments in Rape Reform Legislation, 6 Women's Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III).

Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman's will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind. "Thus, the perpetrator's use of force became criminal only if the victim's state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent." National Institute of Law Enforcement and Criminal Justice, Forcible Rape — An Analysis of Legal Issues 5 (March 1978) (Forcible Rape). Although the terms "non-consent" and "against her will" were often treated as equivalent, see, e.g., Wilson v. State, 109 A.2d 381 (Del. 1954), cert. den., 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955), under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will. As a Delaware court stated, "If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape." State v. Brown, 83 A. 1083, 1084 (O.T. 1912); 75 C.J.S. Rape § 11-12 (1952).

The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the [433] intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, "assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness." Offender's Forceful Conduct, supra, 56 Geo. Wash.L.Rev. at 403. Evidence of resistance was viewed as a solution to the credibility problem; it was the "outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent." Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).

The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. See, e.g., State v. Brown, 127 Wis. 193, 106 N.W. 536 (1906) (overturning forcible rape conviction based on inadequate resistance by the victim); People v. Dohring, 59 N.Y. 374 (1874). Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes, 42 Cal.3d 284, 228 Cal. Rptr. 228, 721 P.2d 110, 117 (1986) (observing that "[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force"). In many jurisdictions the requirement was that the woman have resisted to the utmost. "Rape is not committed unless the woman oppose the man to the utmost limit of her power." People v. Carey, 223 N.Y. 519, 119 N.E. 83 (N.Y. 1918). "[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost." Moss v. State, 208 Miss. 531, 45 So.2d 125, 126 (1950). Other states [434] followed a "reasonableness" standard, while some required only sufficient resistance to make non-consent reasonably manifest. Forcible Rape, supra, at 5.

At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. In State v. Harris, 70 N.J. Super. 9, 174 A.2d 645 (1961), the Appellate Division recognized that the "to the uttermost" test was obsolete. Id. at 16, 174 A.2d 645. "The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent." Id. at 16-17, 174 A.2d 645. Nonetheless, the "resistance" requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: "[W]e have rejected the former test that a woman must resist `to the uttermost.' We only require that she resist as much as she possibly can under the circumstances." State v. Terry, 89 N.J. Super. 445, 449, 215 A.2d 374.

The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant's conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant's actions as on the nature of the victim's response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505-07 (1975) (Definition of Forcible Rape). "[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault." State v. Terry, supra, 89 N.J. Super. at 449, 215 A.2d 374. Under the pre-reform law, the resistance offered had to be "in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory." State v. Terry, supra, 89 N.J. Super. at 450, 215 A.2d 374. That the law put the rape victim on trial was clear.

[435] The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim's will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex.Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that "the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female"). In New Jersey the amount of force necessary to establish rape was characterized as "`the degree of force sufficient to overcome any resistance that had been put up by the female.'" State v. Terry, supra, 89 N.J. Super. at 451, 215 A.2d 374 (quoting jury charge by trial court). Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. See, e.g., Moss v. State, supra, 45 So.2d at 125. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the "force" element of the offense. E.g., Pomeroy v. State, 94 Ind. 96 (1884); State v. Atkins, 292 S.W. 422 (Mo. 1926); Lee v. State, 322 So.2d 751, 752 (Miss. 1975).

The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary [436] rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. See, e.g., Allison v. United States, 409 F.2d 445, 448 (D.C. Cir.1969). Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. State v. Conner, 97 N.J.L. 423, 424, 118 A. 211 (Sup.Ct. 1922). Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).

During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack. See, e.g., House [of Delegates] Urges New Definition of Rape, 61 A.B.A.J. 464 (1975); Note, Toward a Consent Standard in the Law of Rape, 43 U.Chi.L.Rev. 613, 638 (1976) (Toward a Consent Standard); see also People v. Barnes, supra, 721 P.2d at 117 (discussing influence of distrust of female rape victims on legal standards). Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that "[d]istrust of the complainant's credibility [had] led to an exaggerated insistence on evidence of resistance," resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. [437] See Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to "bring[] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence").

To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result. Menachem Amir, Patterns in Forcible Rape, 164-65, 169-171 (1971); Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506; Note, Elimination of the Resistance Requirement and Other Rape Law Reforms: The New York Experience, 47 Alb.L.Rev. 871, 872 (1983). That research discredited the assumption that resistance to the utmost or to the best of a woman's ability was the most reasonable or rational response to a rape.

The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman's will or the insult to her chastity but in the forcible attack itself — the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.

That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal [438] exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. See, e.g., State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981); see also Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 184, 207 (noting that common-law principles excluded spouses from prosecution in New Jersey as in most other jurisdictions). Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender's Forceful Conduct, supra, 58 Geo.Wash.L.Rev. at 402; Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258-60 (1986); see also Hale, supra, at 629 (noting that "a `ravished' woman could `redeem' the convicted offender and save him from execution by marrying him").

Critics of rape law agreed that the focus of the crime should be shifted from the victim's behavior to the defendant's conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse, Towards a Consent Standard, supra, 43 U.Chi.L.Rev. 613; others urged the elimination of any reference to consent from the definition of rape, Offender's Forceful Conduct, supra, 56 Geo.Wash.L.Rev. at 401. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented. Ibid.

Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that [439] depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of "bodily integrity." Susan Estrich, Rape, 95 Yale L.J. 1087, 1105, (1986). In urging that the "resistance" requirement be abandoned, reformers sought to break the connection between force and resistance.

III

The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.

In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute's Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14-1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14-1(b)(1). The comments to the MPC, on which the proposed Code was based, state that "[c]ompulsion plainly implies non-consent," [440] and that the words "compels to submit" require more than "a token initial resistance." A.L.I., MPC, § 213.1, comments at 306 (revised commentary 1980).

The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L. 1978, c. 95 § 2C:14-1 to -7; N.J.S.A. 2C:14-1 to -7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. Id. at 207-08. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. Leigh Bienen, Rape II, 3 Women's Rts.L.Rep. 90 (1977). The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), [M.C.L.A. § 750.520d] and on the reform statutes in New Mexico, Minnesota, and Wisconsin. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. The stated intent of the drafters of the Philadelphia Center's Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would "`normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.'" Stuart Marques, Women's Coalition Lauds Trenton Panel: Tough Rape Law Revisions Advance, Newark Star Ledger, (May 10, 1978) at 1 (quoting Roberta Kaufman, New Jersey Coalition Against Rape).

Since the 1978 reform, the Code has referred to the crime that was once known as "rape" as "sexual assault." The crime now requires "penetration," not "sexual intercourse." It requires "force" or "coercion," not "submission" or "resistance." [441] It makes no reference to the victim's state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional "carnal knowledge."^[2] Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.

The reform statute defines sexual assault as penetration accomplished by the use of "physical force" or "coercion," but it does not define either "physical force" or "coercion" or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining "physical force" too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 181. The task of defining "physical force" therefore was left to the courts.

That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape "[t]he prohibition of force or `forcible compulsion' ends up being defined in terms of a woman's resistance"). That risk was encountered by the Michigan Supreme Court in People v. Patterson, 428 Mich. 502, 410 N.W.2d 733 (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of [442] the court concluded that the defendant had not used force as required by the statute because there was "no evidence of physical overpowering ... [and] there was no submission." Id. 410 N.W.2d at 740. Justice Boyle, in dissent, soundly criticized the majority's position as a distortion of the legislature's intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in "defin[ing] force by measuring the degree of resistance by the victim," the majority had effectively "reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted." Id. at 747-49.

Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to "overcoming the will" of the victim, or to the "physical overpowering" of the victim, or the "submission" of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.

The Legislature's concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as "the unlawful application of force to the person of another." 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another [is] a battery." Perna v. Pirozzi, 92 N.J. 446, 462, 457 A.2d 431 (1983). Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse [443] between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.

The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.

The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature's decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.

[444] We note that the contrary interpretation of force — that the element of force need be extrinsic to the sexual act — would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.

Because the statute eschews any reference to the victim's will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. See Ill. Rev. Stat. ch. 38, para. 12-17 (1984) (defining consent as "freely given agreement"); see also, People v. [445] Patterson, supra, 410 N.W.2d at 749 (Boyle, J., dissenting) (reasoning that "force" may include "a sexual touching brought about involuntarily," and may consist of "a contact which occurs before consent can be given or refused"); cf. N.J.S.A. 2C:2-10(c)(3) (indicating that "consent" does not constitute a defense sufficient to negate an element of a crime if consent was induced or accomplished by force or coercion). Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

Our understanding of the meaning and application of "physical force" under the sexual assault statute indicates that the term's inclusion was neither inadvertent nor redundant. The term "physical force," like its companion term "coercion," acts to qualify the nature and character of the "sexual penetration." Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of "physical force" encompasses the notion of "unpermitted touching" derived from the Legislature's decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving "sexual penetration," the term "physical force" serves to define and explain the acts that are offensive, unauthorized, and unlawful.

That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is [446] possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle Paint Oil Co., 129 N.J. 81, 94-96, 609 A.2d 11 (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106, 609 A.2d 11 (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting "physical force" to include any touching that occurs without permission we seek to respect that goal.

Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1529 (arguing that "forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person's bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature").

We emphasize as well that what is now referred to as "acquaintance rape" is not a new phenomenon. Nor was it a "futuristic" concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the [447] stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. Acquaintance Rape, supra, at 10. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Acquaintance Rape, supra, at 10. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s. Id. at 18.

The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.

IV

In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant's act of penetration was undertaken in circumstances that led the defendant reasonably [448] to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.

In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant's actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable.

In these cases neither the alleged victim's subjective state of mind nor the reasonableness of the alleged victim's actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.

In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of [449] surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.

In the context of a sexual penetration not involving unusual or added "physical force," the inclusion of "permission" as an aspect of "physical force" effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2-10c(3). The definition of "permission" serves to define the "consent" that otherwise might allow a defendant to avoid criminal liability. Because "physical force" as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the "consent" necessary to negate such "physical force" under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.

In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. 247 N.J. Super. at 260, 588 A.2d 1282. It acknowledged that its conclusion was "anomalous" because it recognized that "a woman has every right to end [physically intimate] activity without sexual penetration." Ibid. Thus, it added to its holding that "[e]ven the force of penetration might... be sufficient if it is shown to be employed to overcome the victim's unequivocal expressed desire to limit the encounter." Ibid.

The Appellate Division was correct in recognizing that a woman's right to end intimate activity without penetration is a [450] protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman's unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim's will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person's failure to protest or resist cannot be considered or used as justification for bodily invasion.

We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court's disposition.

Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.

For reversal and reinstatement — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.

Opposed — None.

[1] The sexual assault statute, N.J.S.A.: 2C:14-2c(1), reads as follows:

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;

(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(4) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power over the victim; or

(c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;

(5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.

Sexual assault is a crime of the second degree.

[2] The reform replaced the concept of carnal abuse, which was limited to vaginal intercourse, with specific kinds of sexual acts contained in a broad definition of penetration:

Sexual penetration means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. [N.J.S.A. 2C:14-1.]

[1225] COUNSEL

Vincent J. O'Malley and Allen & O'Malley for Petitioner.

James P. Fox, District Attorney, for Respondent.

John K. Van de Kamp, Attorney General, Eugene W. Kaster, Herbert F. Wilkinson and Blair W. Hoffman, Deputy Attorneys General, for Real Party in Interest.

OPINION

NEWSOM, J.

By timely petition filed with this court, petitioner Daniel Boro seeks a writ of prohibition to restrain further prosecution of count II of the information on file against him in San Mateo County Superior Court No. C-13489 charging him with a violation of Penal Code section 261, [1226] subdivision (4),^[1] rape: "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused."^[2]

(1) Petitioner contends that his motion to dismiss should have been granted with regard to count II because the evidence at the preliminary hearing proved that the prosecutrix, Ms. R., was aware of the "nature of the act" within the meaning of section 261, subdivision (4). The Attorney General contends the opposite, arguing that the victim's agreement to intercourse was predicated on a belief — fraudulently induced by petitioner — that the sex act was necessary to save her life, and that she was hence unconscious of the nature of the act within the meaning of the statute.

In relevant part the factual background may be summarized as follows. Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as "Dr. Stevens" and said that he worked at Peninsula Hospital.

"Dr. Stevens" told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.

"Dr. Stevens" further explained that there were only two ways to treat the disease. The first was a painful surgical procedure — graphically described — costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, "Dr. Stevens" explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, nonsurgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the "doctor" suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the nonsurgical alternative and consented to intercourse with the mysterious donor, believing "it was the only choice I had."

After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted "Dr. [1227] Stevens" by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called "Dr. Stevens" to give him her room number.

About a half hour later the defendant "donor" arrived at her room. When Ms. R. had undressed, the "donor," petitioner, after urging her to relax, had sexual intercourse with her.

At the time of penetration, it was Ms. R.'s belief that she would die unless she consented to sexual intercourse with the defendant: as she testified, "My life felt threatened, and for that reason and that reason alone did I do it."

Petitioner was apprehended when the police arrived at the hotel room, having been called by Ms. R.'s supervisor. Petitioner was identified as "Dr. Stevens" at a police voice lineup by another potential victim of the same scheme.

Upon the basis of the evidence just recounted, petitioner was charged with five crimes, as follows: Count I: section 261, subdivision (2) — rape: accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. Count II: section 261, subdivision (4) — rape "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused." Count III: section 266 — procuring a female to have illicit carnal connection with a man "by any false pretenses, false representation, or other fraudulent means, ..." Count IV: section 664/487 — attempted grand theft. Count V: section 459 — burglary (entry into the hotel room with intent to commit theft).

A section 995 motion to set aside the information was granted as to counts I and III — the latter by concession of the district attorney. Petitioner's sole challenge is to denial of the motion to dismiss count II.

The People's position is stated concisely: "We contend, quite simply, that at the time of the intercourse Ms. R., the victim, was `unconscious of the nature of the act': because of [petitioner's] misrepresentation she believed it was in the nature of a medical treatment and not a simple, ordinary act of sexual intercourse." Petitioner, on the other hand, stresses that the victim was plainly aware of the nature of the act in which she voluntarily engaged, so that her motivation in doing so (since it did not fall within the proscription of section 261, subdivision (2)) is irrelevant.

[1228] Our research discloses sparse California authority on the subject. A victim need not be totally and physically unconscious in order that section 261, subdivision (4) apply. In People v. Minkowski (1962) 204 Cal. App.2d 832 [23 Cal. Rptr. 92], the defendant was a physician who "treated" several victims for menstrual cramps. Each victim testified that she was treated in a position with her back to the doctor, bent over a table, with feet apart, in a dressing gown. And in each case the "treatment" consisted of the defendant first inserting a metal instrument, then substituting an instrument which "felt different" — the victims not realizing that the second instrument was in fact the doctor's penis. The precise issue before us was never tendered in People v. Minkowski because the petitioner there conceded the sufficiency of evidence to support the element of consciousness.

The decision is useful to this analysis, however, because it exactly illustrates certain traditional rules in the area of our inquiry. Thus, as a leading authority has written, "if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, p. 1079.)

The victims in Minkowski consented, not to sexual intercourse, but to an act of an altogether different nature, penetration by medical instrument. The consent was to a pathological, and not a carnal, act, and the mistake was, therefore, in the factum and not merely in the inducement.

Another relatively common situation in the literature on this subject — discussed in detail by Perkins (supra, at p. 1080) is the fraudulent obtaining of intercourse by impersonating a spouse. As Professor Perkins observes, the courts are not in accord as to whether the crime of rape is thereby committed. "[T]he disagreement is not in regard to the underlying principle but only as to its application. Some courts have taken the position that such a misdeed is fraud in the inducement on the theory that the woman consents to exactly what is done (sexual intercourse) and hence there is no rape; other courts, with better reason it would seem, hold such a misdeed to be rape on the theory that it involves fraud in the factum since the woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery. Her innocence seems never to have been questioned in such a case and the reason she is not guilty of adultery is because she did not consent to adulterous intercourse. Statutory changes in the law of rape have received attention earlier and need not be [1229] repeated here." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, pp. 1080-1081, fns. omitted.)

In California, of course, we have by statute^[3] adopted the majority view that such fraud is in the factum, not the inducement, and have thus held it to vitiate consent. It is otherwise, however, with respect to the conceptually much murkier statutory offense with which we here deal, and the language of which has remained essentially unchanged since its enactment (as § 261, subd. (5), now subd. (4)) in 1872.

The language itself could not be plainer. It defines rape to be "an act of sexual intercourse" with a nonspouse, accomplished where the victim is "at the time unconscious of the nature of the act ..." (§ 261, subd. (4).) Nor, as we have just seen, can we entertain the slightest doubt that the Legislature well understood how to draft a statute to encompass fraud in the factum (§ 261, subd. (5)) and how to specify certain fraud in the inducement as vitiating consent.^[4] Moreover, courts of this state have previously confronted the general rule that fraud in the inducement does not vitiate consent. (People v. Harris (1979) 93 Cal. App.3d 103, 113-117 [155 Cal. Rptr. 472]; Mathews v. Superior Court (1981) 119 Cal. App.3d 309, 312 [173 Cal. Rptr. 820].) Mathews found section 266 (fraudulent procurement of a female for illicit carnal connection) inapplicable where the facts showed that the defendant, impersonating an unmarried woman's paramour, made sexual advances to the victim with her consent. While the facts demonstrate classic fraud in the factum, a concurring opinion in Mathews specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in section 261, subdivision (5) and then-section 268.

The People, however, direct our attention to Penal Code section 261.6, which in their opinion has changed the rule that fraud in the inducement does not vitiate consent. That provision reads as follows: "In prosecutions under sections 261, 286, 288a or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an act of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."

[1230] We find little legislative history for this section beyond that contained in the 1982 Summary Digest, to wit:

"Existing law proscribes certain forms of sexual conduct, such as oral copulation under specified circumstances and penetration of the genital or anal openings of another person by a foreign object, as specified.

"This bill would revise the above provisions; provide that penetration of the genital or anal openings of another by a foreign object by force and violence, in concert with another, is punishable by imprisonment for 5, 7, or 9 years; establish the crime of sexual battery, as defined; and define the term `consent' for the purpose of designated prosecutions in which consent is at issue." In addition, the author of a Pacific Law Journal article has concluded that the statute was enacted in response to People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337], in order to provide an explicit definition of consent to be used in prosecutions in which consent was at issue. (Review of 1982 Legislation (1983) 14 Pacific L.J. 357, 547, 548, fn. 8.) Section 261.6 was enacted as a part of Chapter 1111, Statutes of 1982, which amended various substantive sex crime statutes and created the crime of sexual battery. (§ 243.4.)

If the Legislature at that time had desired to correct the apparent oversight decried in Mathews, supra,^[5] — it could certainly have done so. But the Attorney General's strained reading of section 261.6 would render section 261, subdivision (5) meaningless surplusage; and we are "`exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.'" (People v. Olsen (1984) 36 Cal.3d 638, 647 [205 Cal. Rptr. 492, 685 P.2d 52].)

Finally, the Attorney General cites People v. Howard (1981) 117 Cal. App.3d 53 [172 Cal. Rptr. 539]. There, the court dealt with section 288a, subdivision (f) and section 286, subdivision (f) making criminal oral copulation or sodomy between adults where one person is "unconscious of the nature of the act." But in Howard, supra, the victim was a 19-year-old with the mental capacity of a 6-to-8-year-old, who "simply [did] not understand the nature of the act in which he participat[ed]." (117 Cal. App.3d 53, 55.) Whether or not we agree with the Howard court's analysis, we note that here, in contrast, there is not a shred of evidence on the record before us to suggest that as the result of mental retardation Ms. R. lacked the capacity to appreciate the nature of the sex act in which she engaged. [1231] On the contrary, her testimony was clear that she precisely understood the "nature of the act," but, motivated by a fear of disease, and death, succumbed to petitioner's fraudulent blandishments.

To so conclude is not to vitiate the heartless cruelty of petitioner's scheme, but to say that it comprised crimes of a different order than a violation of section 261, subdivision (4).

Let a peremptory writ of prohibition issue restraining respondent from taking further action upon count II (a violation of Pen. Code, § 261, subd. (4)) in People v. Daniel Kayton Boro, aka Jerry K. Russo, Emmett Boro and Dan Borghello, San Mateo County Superior Court No. C-13489, other than dismissal. The stay of trial heretofore imposed shall remain in effect until the finality of this opinion.^[6]

Racanelli, P.J., concurred.

HOLMDAHL, J.

I respectfully dissent.

All concerned with this case are handicapped by what my colleagues call "sparse California authority on the subject" before us. Neither are we aided by the "little legislative history" concerning the 1982 enactment of Penal Code section 261.6.^[1]

I agree with my colleagues' conclusion that in enacting section 261.6 the Legislature could have corrected, but did not, "the apparent oversight decried in Mathews ...." I disagree, however, with their apparent conclusion that section 261.6 does not apply in the present case.

While Mathews did involve alleged false pretenses, that opinion was concerned solely with an interpretation of section 266. The new section 261.6 does not apply to prosecutions under section 266. Section 261.6 does, however, expressly apply to "prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue...."

The case before us concerns a prosecution under section 261, subd. (4), and "consent is at issue." Consequently, section 261.6, defining "consent" applies in this case.^[2] It is apparent from the abundance of appropriate adjectives [1232] and adverbs in the statute that the Legislature intended to the point of redundancy to limit "consent" to that which is found to have been truly free and voluntary, truly unrestricted and knowledgeable. Thus, section 261.6 provides: "In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (Italics added.)

"[C]ourts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. [Citations.]" (People v. Jones (1964) 228 Cal. App.2d 74, 83 [39 Cal. Rptr. 302].) Recourse to the Oxford English Dictionary (1978) indicates that the "positive" of "positive cooperation" is that which is "free from qualifications, conditions, or reservations; absolute, unconditional; opposed to relative and comparative." (Id., vol. 4, p. 1152, italics in original.)

"Free will" is defined as "[s]pontaneous will, unconstrained choice (to do or act) ... left to or depending upon one's choice or election." (Id., vol. 4, "F.," p. 528.)

"Freely" is defined as "[o]f one's own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly." (Id., vol. 4, "F.," p. 526.)

"Voluntarily" is defined as "[o]f one's own free will or accord; without compulsion, constraint, or undue influence by others; freely, willingly.... Without other determining force than natural character or tendency; naturally, spontaneously." (Id., vol. 12, "V.," p. 302.)

Further, I take the statute's use of "act or attitude" and "act or transaction" to mean more than an alleged victim's knowledge that she would be engaging in the physical act of sexual intercourse and more than that she intended to do so. Those phrases, in combination with the adjectives and adverbs discussed, lead me to conclude that while the Legislature in section 261.6 did not expressly repeal the legalisms distinguishing "fraud in the factum" and "fraud in the inducement," its intention certainly was to restrict "consent" to cases of true, good faith consent, obtained without substantial fraud or deceit.

[1233] I believe there is a sufficient basis for prosecution of petitioner pursuant to section 261, subd. (4). I would deny the writ.

A petition for a rehearing was denied February 21, 1985. Holmdahl, J., was of the opinion that the petition should be granted. The petition of real party in interest for a hearing by the Supreme Court was denied April 4, 1985.

[1] Unless otherwise noted, all further statutory references are to the California Penal Code.

[2] Petitioner makes no challenge to count IV, attempted grand theft (§§ 664/487) and count V, burglary (§ 459) of the information. Count I and count III (§§ 261, subd. (2) and 266) were dismissed below.

[3] Section 261, subdivision (5) reads as follows: "Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief."

[4] Prior to its repeal by Statutes 1984, chapter 438, section 2, section 268 provided that: "Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison, or by a fine of not more than five thousand dollars [$5,000], or by both such fine and imprisonment."

[5] It is not difficult to conceive of reasons why the Legislature may have consciously wished to leave the matter where it lies. Thus, as a matter of degree, where consent to intercourse is obtained by promises of travel, fame, celebrity and the like — ought the liar and seducer to be chargeable as a rapist? Where is the line to be drawn?

[6] We note that by separate opinion filed this date in A027931, we have commanded respondent to sever the remaining charge in this case from a separate fraud case on file in San Mateo County Superior Court No. C-13551.

[1] Apparently, no published decision as yet deals with section 261.6.

[2] While the word "consent" appears only in section 261, subd. (1), all the subdivisions concern the victim's state of mind.

Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ.

Patricia A. O'Neill for Eugene Sherry.

Kenneth M. Goldberg for Arif Hussain.

Joseph J. Balliro (Juliane Balliro with him) for Alan Lefkowitz.

Michael J. Traft, Assistant District Attorney (Kathleen Coffey, Assistant District Attorney, with him) for the Commonwealth.

LIACOS, J.

Each defendant was indicted on three charges of aggravated rape (G.L.c. 265, § 22) and one charge of kidnapping (G.L.c. 265, § 26). A jury acquitted the defendants [684] of kidnapping and convicted them of so much of each of the remaining three indictments as charged the lesser included offense of rape without aggravation. Each defendant was sentenced on each conviction to be imprisoned at the Massachusetts Correctional Institution, Walpole, for a term of not more than five years nor less than three years. Six months of the sentence was to be served, with the balance of the sentence to be suspended. On completion of the sentence served, each defendant was to be placed on probation for the term of one year. The sentences on the second and third convictions of each defendant were to be served concurrently with the first sentence. The trial judge ordered a stay of execution of sentence, pending appeal. The defendants appeal from their convictions and from the denial of their posttrial motions to set aside the verdicts and to enter findings of not guilty. Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). We transferred the appeals here on our own motion. We now affirm each of the defendants' convictions on one charge of rape and vacate each defendant's convictions on the other two charges of rape.

The defendants contend that the trial judge erred (1) by denying their motions for a required finding of not guilty; (2) by denying their motions for a mistrial alleging prosecutorial misconduct; (3) by admitting hearsay evidence of the victim's fresh complaint and refusing to admit other hearsay statements of the victim; and (4) in instructing the jury on the lesser included offense of unaggravated rape and refusing to instruct the jury according to the defendants' requests. The defendants also contend that the jury verdicts were impossible as a matter of law, so that a new trial must be granted or the verdicts set aside. We consider each of these claims of error.

There was evidence of the following facts. The victim, a registered nurse, and the defendants, all doctors, were employed at the same hospital in Boston. The defendant Sherry, whom the victim knew professionally, with another doctor was a host at a party in Boston for some of the hospital [685] staff on the evening of September 5, 1980. The victim was not acquainted with the defendants Hussain and Lefkowitz prior to this evening.

According to the victim's testimony, she had a conversation with Hussain at the party, during which he made sexual advances toward her. Later in the evening, Hussain and Sherry pushed her and Lefkowitz into a bathroom together, shut the door, and turned off the light. They did not open the door until Lefkowitz asked them to leave her in peace.^[2] At various times, the victim had danced with both Hussain and Sherry.

Some time later, as the victim was walking from one room to the next, Hussain and Sherry grabbed her by the arms and pulled her out of the apartment as Lefkowitz 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.^[3] She further testified that, once outside, Hussain carried her over his shoulder to Sherry's car and held her in the front seat as the four drove to Rockport. En route, she engaged in superficial conversation with the defendants. She testified that she was not in fear at this time. When they arrived at Lefkowitz's home in Rockport, she asked to be taken home. Instead, Hussain carried her into the house.

Once in the house, the victim and two of the men smoked some marihuana, and all of them toured the house. Lefkowitz invited them into a bedroom to view an antique bureau, and, once inside, the three men began to disrobe. The victim was frightened. She verbally protested, but the three men proceeded to undress her and maneuver her onto [686] 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, two of the defendants left the room temporarily. 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.

Some time later, Lefkowitz told the victim that they were returning to Boston because Hussain 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.

The defendants testified to a similar sequence of events, although the details of the episode varied significantly. According to their testimony, Lefkowitz invited Sherry to accompany him from the party to a home that his parents owned in Rockport. The victim was present when this invitation was extended and inquired as to whether she could go along. As the three were leaving, Sherry extended an invitation to Hussain. At no time on the way out of the apartment, in the elevator, lobby, or parking lot did the victim indicate her unwillingness to accompany the defendants.

Upon arrival in Rockport, the victim wandered into the bedroom where she inquired about the antique bureau. She sat down on the bed and kicked off her shoes, whereupon Sherry entered the room, dressed only in his underwear. Sherry helped the victim get undressed, and she proceeded to have intercourse with all three men separately and in turn. Each defendant testified that the victim consented to the acts of intercourse.

Motions for a required finding of not guilty. At the close of the Commonwealth's case, the defendants moved for a required finding of not guilty on each of the indictments. [687] Mass. R. Crim. P. 25, 378 Mass. 896 (1979). The defendants argued that there was no evidence of force or threat of bodily injury, a required element of the crime of rape. The defendants also argued that aggravating circumstances, i.e., kidnapping or rape by joint enterprise, had not been proved. The judge denied their motions.

The defendants contend that, at the close of the Commonwealth's case, see Commonwealth v. Wilborne, 382 Mass. 241, 244 (1981), the evidence was insufficient to persuade a rational trier of fact of each of the elements of the crime charged beyond a reasonable doubt. We consider whether the evidence, in the light most favorable to the Commonwealth, "is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Casale, 381 Mass. 167, 168 (1980). The defendants may prevail on this claim of error only if we are convinced that no "rational trier of fact could have found the essential elements of [rape] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury. See G.L.c. 265, §§ 22 (a) & (b). At the close of the Commonwealth's case, the evidence viewed in the light most favorable to the Commonwealth established the following. The victim was forcibly taken from a party by the three defendants and told that she would accompany them to Rockport. Despite her verbal protestations, the victim was carried into an automobile and restrained from leaving until the automobile was well on its way. Notwithstanding her requests to be allowed to go home, the victim was carried again and taken into a house. The three defendants undressed and began to undress the victim and to [688] sexually attack her in unison over her verbal protestations. Once they had overpowered her, each in turn had intercourse with her while the others waited nearby in another room.

The evidence was sufficient to permit the jury to find that the defendants had sexual intercourse with the victim by force and against her will. The victim is not required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is "honest and real." Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). The jury could well consider the entire sequence of events and acts of all three defendants as it affected the victim's ability to resist. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981). Commonwealth v. Chapman, 8 Mass. App. Ct. 260, 262 (1979). Cf. Commonwealth v. Burke, 105 Mass. 376 (1870). There was no error in the denial of the defendants' motions.

Motions for a mistrial. The defense called as a witness one Barbara Gariepy, the victim's nursing supervisor at the hospital. On cross-examination of Gariepy, the prosecutor asked her a series of questions pertaining to the defendant Sherry's sobriety. The prosecutor asked Gariepy if she told a certain detective that Sherry was "falling down drunk." Gariepy stated that she did not know if she had used that terminology. The prosecutor then confronted the witness with a written communication from her to the detective stating that Sherry was "falling down drunk."

The following day of trial, defense counsel moved for a mistrial, alleging that the prosecutor had instructed Gariepy before trial not to use the word "drunk" if she should testify. Thus, the defendants claimed the prosecutor intentionally created the prospect of her impeachment by a prior inconsistent statement. The judge questioned Gariepy in his lobby, and she confirmed that the prosecutor had instructed her not to use the term "drunk" while testifying, because "drunk" was a conclusion or a judgment. She stated that, while testifying, she attempted to describe how Sherry appeared and that she became confused when directly asked whether Sherry was drunk.

[689] The judge concluded there was nothing dishonest or unethical in the prosecutor's conduct and denied the motion for mistrial. The judge also denied the defense motion to strike Gariepy's testimony on cross-examination. During closing argument, the prosecutor restated Gariepy's testimony regarding Sherry's sobriety as illustrative of a hospital-wide conspiracy designed to protect the doctors. The prosecutor also commented on the unbelievability of the testimony of other defense witnesses, implying that they were all "closing ... the ranks" behind the doctors. Defense counsel again moved for a mistrial based on the prosecutor's comment on Gariepy's prior inconsistent statement.

We find no error in the denial of the motion for a mistrial. The record does not indicate any scheme or design by the prosecutor to confuse or trap the witness. We cannot say that the trial judge erred in determining that the prosecutor's cross-examination of Gariepy was neither dishonest nor unethical. It appears that the advice the prosecutor gave Gariepy was designed to avoid the strictures of the so called opinion rule. Whether the advice was well taken or not, the judge could correctly conclude that this incident was not ground for a mistrial. As to the argument, since the evidence had not been excluded, Commonwealth v. Burke, 373 Mass. 569, 575 (1977), it was fair for the prosecutor to comment on it. See Commonwealth v. Dilone, 385 Mass. 281, 286 (1982); S.J.C. Rule 3:08, PF-13 (a), as appearing in 382 Mass. 802 (1981). "Counsel may argue as to the evidence and the fair inferences from the evidence." Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring), citing Leone v. Doran, 363 Mass. 1, 18 (1973). Arguably, Gariepy sought to minimize any testimony damaging to the defendants and thus the prosecutor, in his closing, did not refer to facts which he knew to be untrue. See Leone v. Doran, supra. "This is not a case where a criminal conviction has been obtained by the knowing use of false testimony and, consequently, such cases cited by the defendant as Napue v. Illinois, 360 U.S. 264 (1959), and Giglio [690] v. United States, 405 U.S. 150 (1972), are not controlling." Commonwealth v. Gilday, 367 Mass. 474, 490 (1975). Compare Commonwealth v. Daigle, 379 Mass. 541, 546 (1980) (unintentional use of false testimony not reviewed under strict standard of materiality). We note further that the judge clearly instructed the jury on the use of impeachment testimony.^[4]

Evidence of fresh complaint. The defendants contend that the judge erred in admitting testimony indicating that the victim made a fresh complaint of the rape to several persons. The defendants do not dispute the general principle that "testimony reporting statements made by the victim shortly after [a rape] are universally admitted to corroborate the victim's testimony." Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Rather, the defendants argue, in substance, that the victim's delay in making the statements disqualifies the complaints as being admissible, particularly in light of opportunities she may have had to complain while still in the company of the defendants.

The evidence of fresh complaint that was admitted was as follows. The victim's roommate testified that the victim related the facts of the rape to her in their apartment in the early hours of the morning following the incident. Another friend of the victim testified that the victim told her about the rape over the telephone at approximately 9 A.M. on the same morning. The police officer who spoke with the victim the day following the incident testified as to what the victim told him about the rape, and a hospital report reciting the events that occurred was also admitted in evidence.

[691] Although the judge made no explicit preliminary findings whether the statements were sufficiently prompt to constitute fresh complaint, see Commonwealth v. Cleary, 172 Mass. 175, 177 (1898), the record indicates that the judge looked at all the circumstances of the case and concluded that on these particular facts the victim's complaints were reasonably prompt. The judge instructed the jury that they could reject the proffered evidence as being corroborative of the victim's testimony if they did not find that the complaints were made "reasonably promptly." See Commonwealth v. McGrath, 364 Mass. 243, 250 (1973).

We cannot say that the judge abused his discretion. There is no rule that requires a victim to complain of a rape to strangers in an unfamiliar place while still in the company of the alleged rapist. The actions of the victim were reasonable in the particular circumstances of the case. Cf. Commonwealth v. Izzo, 359 Mass. 39, 42-43 (1971). The victim first reported the rape to her friend and roommate within a few hours after being dropped off by the defendants. There was no error.^[5]

Exclusion of victim's prior out-of-court statements. Defense counsel sought a pretrial ruling regarding the admissibility of two out-of-court statements of the victim. A voir dire was conducted, during which one Cheryl Rowley testified that the victim had made statements at a rape crisis seminar. Rowley testified that the victim stated at the seminar "that she had been raped in the past, and that she had had a couple of occasions where she was almost raped. [692] And she told us about different ways that she got out of being raped — the times that she did." Rowley testified further that "[t]he one that I remembered the most was that she had been taken to a sand pit by some man, and he was attempting to rape her, and she said that she got out of it by what she said, `Jerking the guy off.'" The trial judge ruled that this evidence would not be admitted.

The defendants argue that the judge erred in light of our decision in Commonwealth v. Bohannon, 376 Mass. 90 (1978). There was no error. There was no showing that the statements were false or even an exaggeration of the truth; hence, the Bohannon case is inapplicable. Without evidence of falsity, the statements become irrelevant to any issue in the case, including the credibility of the complainant. See Commonwealth v. Bohannon, supra at 95 (evidence of prior false accusations of specific crime that is subject of trial may damage complainant's credibility).

The defendants further argue that the judge's exclusion of the statement concerning how the victim would extricate herself from a rape situation constitutes reversible error. At trial, the defendants argued that, since the victim would testify that she was confused, disoriented, and unable to react to the acts of the defendants, the prior statement was inconsistent and, thus, directly affected her credibility. Defense counsel was permitted on cross-examination of the victim to ask the following:

DEFENSE COUNSEL: "Do you recall ... saying at the Rape Crisis Seminar, that you attended, that you could never be raped because if anybody tried to rape you, all you'd do was reach down and jerk him off."

PROSECUTOR: "Objection, your Honor."

JUDGE: "I'll take the answer. Do you remember saying that?"

WITNESS: "No, I don't."

DEFENSE COUNSEL: "You don't remember saying that?"

WITNESS: "No, I don't."

Some time later at trial, defense counsel sought, in direct examination, to introduce Rowley's testimony, as stated in the [693] voir dire, to impeach the victim's credibility. The judge excluded the question, apparently on the basis that the evidence related to a collateral matter. The defendants claim that this ruling was in error and denied them their right to present their defense.

"Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge." Commonwealth v. Chasson, 383 Mass. 183, 187 (1981). The trial judge, in his sound discretion, may exclude evidence if the danger of confusion, unfair prejudice, or undue consumption of time in trial of collateral issues outweighs the probative worth of the evidence offered. Robitaille v. Netoco Community Theatre, 305 Mass. 265, 267-268 (1940). In the circumstances of this case, we cannot say that the judge abused his discretion.

The out-of-court statement of the victim was hearsay and was offered only to impeach her credibility generally and not as to her description of the events in issue. Consequently, Rowley's testimony was collateral to all issues in the case, save the victim's credibility. The victim's testimony on matters not relevant to contested issues in the case cannot, as of right, be contradicted by extrinsic evidence. P.J. Liacos, Massachusetts Evidence 135 (5th ed. 1981). See, e.g., Commonwealth v. Chase, 372 Mass. 736, 746-748 (1977).^[6]

[694] Jury charge on unaggravated rape. The defendants contend that the judge erred in charging the jury that they could find the defendants guilty of unaggravated rape. The defendants objected to the charge, arguing that the Commonwealth's theory throughout the case was an aggravated rape by joint enterprise or kidnapping. The judge, however, stated that the jury could find the defendants guilty of unaggravated rape if there was insufficient evidence of the aggravating factors, viz., kidnapping or joint enterprise, but that rape was otherwise proved. The defendants, on appeal, rely on two theories for reversal: first, that the defendants' convictions on a charge not tried constituted a denial of procedural due process; second, that the trial judge erred in instructing the jury on unaggravated rape because the greater offense of aggravated rape did not require the jury to find a disputed factual element not required for the lesser included offense.

General Laws c. 265, § 22, as appearing in St. 1980, c. 459, § 6, states in part that "(a) Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of [certain felonies] shall be punished by imprisonment in the state prison for life or for any term of years.... (b) Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.... For the purposes of prosecution, the offense described in subsection (b) shall be a lesser included offense to that described in subsection (a)" (emphasis supplied).

"It has long been held that lesser included offenses are those necessarily included in the offense as charged." Commonwealth [695] v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981), citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The offense stated in G.L.c. 265, § 22 (b), is by its exact description, necessarily included in § 22 (a). In order to convict under § 22 (a), all the elements of § 22 (b) must be found, plus an additional aggravating factor. Thus, as determined by the Legislature, the unaggravated rape described in § 22 (b) is a lesser included offense of the aggravated rape described in § 22 (a). We fail to perceive how the defendants were denied their right to procedural due process by the judge's charge. See Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 117-118 (1974), and cases cited. Contrary to the claim of the defendants, the evidence provided a rational basis for jury verdicts that the defendants committed the crime of unaggravated rape. See Commonwealth v. McKay, 363 Mass. 220, 228 (1973). On the state of the evidence, the jury were warranted in concluding that the victim did not consent to intercourse with any of the defendants. The jury could have accepted or rejected the evidence that the defendants were engaged in a joint enterprise, or raped the victim in the course of a kidnapping. The charge properly put the factual issues raised by the evidence to the jury. This was not error.^[7]

[696] Instructions to the jury. The defendants next contend that because the judge failed to give two instructions exactly as requested, the judge's jury charge, considered as a whole, was inadequate and the cause of prejudicial error. The requested instructions in their entirety are set out in the margin.^[8]

The defendants were not entitled to any particular instruction as long as the charge as a whole was adequate. See Commonwealth v. Aronson, 330 Mass. 453, 457-458 (1953) (impression created by charge as whole constitutes test of adequacy); Commonwealth v. MacDougall, 2 Mass. App. Ct. 896 (1974) (judge need not grant specific requested instructions as long as substance is covered). Cf. Commonwealth v. DeChristoforo, 360 Mass. 531, 540 (1971).

The instructions given by the trial judge placed before the jury the essential elements of the crime required to be proved. The judge instructed the jury 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." He later reiterated that "[t]he act of the defendant must have been against the will, that is without the woman's consent, and there must have been sufficient force used by him to accomplish his purpose."

These instructions correctly stated the elements of proof required for a rape conviction. See Commonwealth v. [697] McDonald, 110 Mass. 405, 406 (1872). Moreover, the judge was not required to comment upon particular facts of the case supposed to tend in favor of the defendants. Commonwealth v. Miller, 297 Mass. 285, 287 (1937). The judge was not bound to discuss every subsidiary fact and possible inference, but only to give generally accurate and complete instructions. Commonwealth v. Monahan, 349 Mass. 139, 171 (1965).

To the extent the defendants, at least as to the first requested instruction, appear to have been seeking to raise a defense of good faith mistake on the issue of consent, the defendants' requested instruction would have required the jury to "find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent" (emphasis added). The defendants, on appeal, argue that mistake of fact negating criminal intent is a defense to the crime of rape. The defense of mistake of fact, however, requires that the accused act in good faith and with reasonableness. See Commonwealth v. Presby, 14 Gray 65, 69 (1860); Commonwealth v. Power, 7 Met. 596, 602 (1844); R. Perkins, Criminal Law 939-940 (2d ed. 1969). Whether a reasonable good faith mistake of fact as to the fact of consent is a defense to the crime of rape has never, to our knowledge, been decided in this Commonwealth. We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable good faith mistake of fact. We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness, as a defense; nor do the defendants cite such authority. There was no error.

Inconsistent verdicts. The defendants' final argument is that the judge erred in denying their motions to set aside the verdicts or, in the alternative, to grant a new trial as a result of verdicts which were impossible at law. The defendants were each tried on three charges of aggravated rape and one charge of kidnapping, and the jury returned verdicts of not [698] guilty of kidnapping and so much of the indictments as charged aggravated rape. The defendants argue that the jury, having acquitted them of joint enterprise and kidnapping, could not find them guilty of three counts of the lesser included offense of simple rape. The defendants argue that the verdicts must not be permitted to stand because there was no joint venture theory for the lesser offense, or separate indictments for lesser offenses, nor were there any jury instructions on the theory of joint venture relative to the lesser offense.

The defendants rely on the line of cases that have reversed convictions because of jury verdicts that were impossible at law. See, e.g., Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965) (convictions for larceny of stock and larceny of money proceeds from same stock, error); Commonwealth v. Haskins, 128 Mass. 60, 61 (1880) (convictions of larceny and receipt of same stolen goods, inconsistent in law).

These cases are inapposite. "[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969). See Commonwealth v. White, 363 Mass. 682 (1973). See also Harris v. Rivera, 454 U.S. 339, 347-348 (1981) (verdict will not be set aside based on inconsistency). Although the defendants claim that they do not argue inconsistency of verdicts but rather legal impossibility of verdicts as the basis of the alleged error, the verdicts do not appear to us to be inconsistent. Nor do the verdicts appear to be legally impossible in the sense in which that term was used in Carson, supra, and Haskins, supra. The defendants cannot now complain because the jury did not specifically find the aggravating circumstances necessary for a conviction of aggravated rape. The fact of intercourse between each defendant and the victim was not contested. If the jury believed that each act of intercourse was against the will of the victim, the jury could find, as instructed, that each defendant [699] raped the victim, although they did not find rape by a joint enterprise.

Alternatively, it is possible that the jury were convinced that the defendants raped the victim in a joint enterprise, but were disposed through leniency to convict of the lesser included offense. Cf. Commonwealth v. Dickerson, 372 Mass. 783, 796-798 (1977); id. at 811-812 (Quirico, J., concurring). See Dunn v. United States, 284 U.S. 390, 393-394 (1932). We have stated that "the jury, within their power to appraise evidence selectively, might have accepted as credible enough evidence [to convict the defendants of rape], but might have declined to accept such further evidence as tended to prove [any aggravating circumstances]." Commonwealth v. Dickerson, supra at 796. Although the jury may have the power to act contrary to their legal obligation to return a verdict of guilty of the highest crime which had been proved beyond a reasonable doubt, see Dickerson, supra at 797, this does not mean that a verdict of guilt as to a lesser included offense may withstand a motion to set aside, if the record reveals that there is no evidence to sustain it.

The motion of each defendant to set aside the verdicts, or to grant a new trial, specified an additional ground, namely that the verdicts were "totally contrary to the weight of the evidence." Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). A judge may consider such a motion where, as here, motions for required findings of not guilty had been filed under Mass. R. Crim. P. 25 (a). A verdict of guilty cannot stand when it is wholly contrary to the weight of the evidence. Commonwealth v. Woods, 382 Mass. 1, 7-8 (1980). This situation obtains as to two verdicts of guilty of unaggravated rape as to each defendant. Thus, to this extent, denial of these motions was error. There was no evidence of three separate rapes by each defendant which would warrant a conviction on all three indictments. Cf. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981).

[700] Although affirmance of all of the convictions would have no practical effect on the terms of incarceration, since the multiple sentences were imposed concurrently, we believe that justice requires that the convictions on two of the indictments as to each defendant be set aside.^[9] Cf. Commonwealth v. Jones, 382 Mass. 387, 395-397 (1981). We affirm the defendant Sherry's conviction on so much of indictment number 033745 as charges unaggravated rape and vacate the convictions on the indictments numbered 033746 and 033911. In the defendant Hussain's case, we affirm his conviction on so much of indictment number 033737 as charges unaggravated rape and vacate his convictions on the indictments numbered 033738 and 033739. Similarly, we affirm the defendant Lefkowitz's conviction on so much of the indictment number 033741 as charges unaggravated rape and vacate the convictions on indictments numbered 033743 and 033744.^[10]

So ordered.

[1] Two are against Eugene Sherry, three are against Arif Hussain, and three are against Alan Lefkowitz.

[2] The victim testified that after this incident she complained to a Dr. Sheskey about the defendant Hussain's behavior. Dr. Sheskey corroborated this testimony.

[3] The victim testified that she was not physically restrained as they rode down an elevator with an unknown fifth person, or as they walked through the lobby of the apartment building where other persons were present.

[4] At trial, the defendants also objected to another comment made by the prosecutor during his closing argument. The prosecutor stated: "And don't you think that if there wasn't sperm in that vagina they [the defendants] would have denied even having sex." Defense counsel objected, and the judge instructed the jury that they "should disregard that remark." In his instructions to the jury, the judge also stated that "the statements and arguments of counsel are not evidence." The judge's action in instructing the jury to disregard the remark, and his instructions to the jury that arguments are not evidence, were sufficient to cure any conceivable prejudice. See Commonwealth v. Dougan, 377 Mass. 303, 312 (1979).

[5] The defendants' argument that spontaneity is the linchpin of the fresh complaint exception to the hearsay rule is misplaced. Unlike the practice of some States, evidence of a fresh complaint in a rape case is not admitted as part of the res gestae in this Commonwealth. See Commonwealth v. Cleary, 172 Mass. 175, 176-177 (1898). Rather, admission of the evidence is justified on the ground that the victim's failure to make a prompt complaint might be viewed by the jury as inconsistent with a rape charge, and, in the absence of such evidence, the jury might assume that no complaint was made. Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Thus, "the ground of admission is held to be the corroboration of the testimony of the complainant as a witness." Glover v. Callahan, 299 Mass. 55, 57 (1937).

[6] Counsel for the defendants repeatedly asserted during trial that the proffered evidence did not fall within the rape-shield statute. G.L.c. 233, § 21B. The record is unclear regarding the precise grounds on which the evidence was excluded, although there is some indication that the judge considered the rape-shield statute in making his ruling.

The defendant Hussain argues on appeal that the rape-shield statute is unconstitutional because it absolutely bars evidence of the rape victim's sexual conduct. The defendant, in his brief, alleges that "it is clear that testimony revealing her reputation and also the defendant's knowledge of her reputation for engaging in this type of sexual activity under similar circumstances would clearly have been relevant to the issues of whether her resistance was honest and real and whether the defendant possessed the requisite criminal intent" (emphasis added). We do not reach the issue whether such evidence would be relevant, or whether, in that context, the statute's bar to reputation evidence would be unconstitutional. The defendant did not seek to introduce reputation evidence in the lower court.

[7] The defendants, however, rely on Sansone v. United States, 380 U.S. 343, 349-350 (1965), and further argue that a charge for the lesser included offense could not be given because the defendants did not dispute the alleged joint enterprise. We find no merit in the defendants' assertion that this case falls within the ambit of Sansone simply because the defendants now claim that they did not contest the joint enterprise element of the crime of aggravated rape. The case of United States v. Harary, 457 F.2d 471 (2d Cir.1972), on which the defendants rely is also inapposite. There the charge was bribery, and the defense was entrapment. Additionally, the defendant admitted the specific intent to bribe. See 18 U.S.C. § 201(b) (2) (1976). The court concluded, therefore, that the lesser offense of giving a gratuity for an official act performed or to be performed (18 U.S.C. § 201[f] [1976]), was not in issue, and a conviction of that lesser offense could not stand in light of the acquittal of the bribery charge. Here the defendants did not admit to the existence of a joint enterprise. To the contrary, they contested this issue and, in their motion for a required finding of not guilty, the defendants argued that there was insufficient evidence to establish a joint venture.

[8] "Unless you find beyond a reasonable doubt that [the victim] clearly expressed her lack of consent, or was so overcome by force or threats of bodily injury that she was incapable of consenting, and unless you find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent, then you must find them not guilty."

"If you find that [the victim] had a reasonable opportunity to resist being taken to Rockport, Massachusetts, from the apartment..., and had a reasonable opportunity to avoid or resist the circumstances that took place in the bedroom, at Rockport, but chose not to avail herself of those opportunities, then you must weigh her failure to take such reasonable opportunities on the credibility of her claim that she was kidnapped and raped."

[9] It was not legally impossible for the three defendants to be convicted on three charges of rape on another theory of guilt. The jury could have found that each defendant was an accessory before the fact to the other two acts of rape and the principal to the rape he perpetrated. See Commonwealth v. Morrow, 363 Mass. 601, 609 (1973). The jury, however, were not instructed on the law regarding the liability of principals and accessories and thus could not have based their verdict on this theory.

[10] We perceive no need in this case to remand for resentencing. See Commonwealth v. Layne, ante 291 (1982).