David L Ryan/Globe Staff/file 2017
No means no, even if you’ve exchanged sexually explicit text messages and e-mails with the other person beforehand, the state’s highest court ruled Friday.
In a unanimous ruling, the Supreme Judicial Court upheld the convictions of former Massachusetts State Police Trooper Christopher J. Kennedy, who exposed himself to a woman he first met over the Internet and tried to force her to touch him even as she told him, “No means no.”
Kennedy and the woman met each other through the PlentyOfFish dating website. Her initial interest in him was waning because she suspected he was cheating on his wife, according to court records.
Kennedy’s lawyer argued on appeal that Kennedy mistakenly understood how the woman felt about him because of the content of their electronic conversations over four weeks, what they said during their first face-to-face meeting, and her decision to let him accompany her to her Worthington home on July 1, 2014.
But, writing for the court, Justice Frank M. Gaziano said the concept known to lawyers as “mistake of fact” cannot readily be used by people charged with certain sex crimes even if they honestly thought the other person was a willing participant based on what was written, or said, beforehand.
He quoted from a federal appeals court ruling from 1995: “If on Friday you manifest consent to have sex on Saturday, and on Saturday you change your mind but the man forces you to have sex with him anyway, he cannot use your Friday expression to . . . [invoke] a defense of consent or of reasonable mistake as to consent.”
Moreover, Gaziano wrote, during the incident in the woman’s home, the woman repeatedly told the uniformed Kennedy that she wanted him to stop. The woman said, “No, this isn’t what I thought was going to happen here” and tried to escape but could not get away because she was trapped in the kitchen, the ruling said.
Kennedy, the court ruled, was properly convicted of indecent assault and battery on a person over 14 and of indecent exposure, which become criminal acts when the other person does not consent to participate. Kennedy was also convicted of assault and battery, court records show.
“The prior communications from [the victim], regardless of their flirtatious or sexually explicit content, were not sufficient to support a mistake of fact instruction,’’ Gaziano wrote. “A defendant who ignores a victim’s clear and unambiguous pleas to stop does not raise a legitimate claim of mistake of fact as to consent.”
At the time of their encounter, Kennedy was a trooper assigned to Western Massachusetts. He was ordered to serve six months behind bars and was placed on probation for two years following his 2016 conviction in Hampshire Superior Court. He has since been fired by the State Police.
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