Thursday, 4:30 PM
Appeals court throws out rape conviction
By Jonathan Saltzman, Globe Staff
The state appeals court today reversed the 2004 rape conviction of a former Harvard dental student, ruling that a judge bungled her instruction to the jury about the law concerning intoxication and the ability to consent to sex.
In an unanimous ruling, the three-member panel said Suffolk Superior Court Judge Elizabeth B. Donovan's explanation of the law was "seriously flawed'' and prejudicial to Martin Urban because she failed to specify the high standard that prosecutors must meet to prove someone was too intoxicated to give consent.
Under Massachusetts law, the panel ruled, someone is incapable of consenting to sex if the person has had been rendered "wholly insensible'' by alcohol. Both sides at trial had agreed that the woman was under the influence of alcohol or drugs when the incident occurred in a parked car in December 2001, but they disagreed over how impaired she was.
One of Urban's appellate lawyers, Jeffrey A. Denner, said the ruling clarifies 19th-century case law and means that someone must be so drunk that they are, in his words, "utterly incapable of consent'' to sex.
A spokesman for the Suffolk district attorney's office said prosecutors plan to appeal the ruling to the Supreme Judicial Court and fear that it could make it more difficult to prosecute such cases.
Urban has been serving a sentence of four to six years in state prison.
