On February 18, 2010 the Massachusetts Supreme Judicial Court ruled on the statute of Drugging a person for unlawful sexual intercourse under Chapter 272 §3. In COMMONWEALTH vs. GARY LEBLANC 456 Mass. 135 (2010) the court found that to satisfy the statute, more is required than simply providing certain substances to the victim.
In reviewing the facts the court outlined that a 50 year old male had provided cocaine and alcohol to a 18 year old female. During the incident she ingested cocaine twice, along with alcohol and Marijuana. This occurred over the course of multiple trips to the defendants house at varying times during the day. During the last time after again ingesting Cocaine, Alcohol and Marijuana she passed out in the bedroom. She awoke at one point to find the defendant performing a sex act on her. The question presented was whether he could be convicted of violating the statute under the circumstances.
In deciding the case the court stated “Drugging for unlawful sexual intercourse. The defendant was convicted of drugging a person for the purpose of unlawful sexual intercourse, G. L. c. 272, § 3, which states, in relevant part:
“Whoever applies, administers to or causes to be taken *142 by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse shall be punished . . . .”
The word “administer” is not defined in the statute, nor does there appear to be any appellate decision addressing the issue. [FN4] The judge recited the language of the statute to the jury, but concerning the Commonwealth’s burden to prove that the defendant “administer[ed] to or cause [d] to be taken,” he instructed:
“[The Commonwealth has] to prove that the defendant gave or provided a drug or substance to [the victim] either directly or by offering it to her and requesting her to take it. It’s not necessary for the Commonwealth to prove that the defendant directly put the drug or substance into her by injection, nor into her food or drink. Also, it is not necessary for the Commonwealth to prove that the defendant forced her to consume it.” (Emphasis added.)
The defendant argues that the judge’s instruction, over his objection, that the Commonwealth had to prove only that the defendant “gave or provided” drugs to the victim was erroneous. Where a defendant objects to an instruction, the court must determine whether the instruction was error and review the instruction as a whole to determine whether it prejudiced the defendant. See Commonwealth v. Cruz, 445 Mass. 589, 591, 597 (2005).
In its analysis whether the instruction was erroneous, the Appeals Court first noted the familiar rule that where a word is undefined in the statute, we use its “usual and accepted meanings.” Commonwealth v. LeBlanc, supra at 629, quoting Commonwealth v. Robinson, 444 Mass. 102, 105 (2005). The court stated that two dictionaries did not define “administer” as “[to] provide” but rather as “to direct or superintend the execution, *143 use or conduct of . . . to mete out . . . dispense . . . to give ritually [or] remedially” and “[t]o have charge of; manage.” Id. at 629 & n.3, quoting Webster’s Third New Int’l Dictionary 27 (2002), and the American Heritage Dictionary of the English Language 22 (4th ed. 2006).
The court also concluded that, had the Legislature intended for the word “administer” to mean “provide,” it could have used those words, as it did in G. L. c. 138, § 34, which prohibits the sale or delivery of alcohol to a minor. [FN5] Id. at 629. Finally, the court concluded that, reading the word “administer” in context, i.e., placed between the words “applies” and “causes to be taken,” the statute requires “some forceful action, deceit or trickery on the part of the defendant.” Id.
The Commonwealth sets forth several arguments that there was no error in the instruction, including that the gravamen of the statute is not the method by which the victim is drugged but rather the use of such drugs by the defendant to facilitate unlawful intercourse; that the word “administer” can mean “provide” where, in common usage, the words “give” and “provide” are synonymous, and the word “give” is defined as “to administer”; that other jurisdictions have defined “administer” as to “give”; and that the statutory words “cause to be taken” are the equivalent of “give or provide.”
We are not persuaded and instead, for the reasons set forth by the Appeals Court, conclude that to violate the statute, a defendant must do something more than what occurred here, i.e., simply making alcohol and drugs available to the eighteen year old victim, who testified that she returned to the defendant’s house to consume more drugs and alcohol.”
The defendant was also found guilty on several other counts such as Rape and Indecent assault and battery. But this ruling is a bit troubling, as it indicates that the administering of the illegal narcotics must be with the true intent of stupefying the victim such as the administering of the “Date rape drug”. I believe it defeats the legislative intent of the statute to do so. Regardless the SJC seems to have drawn a distinction between taking advantage of an incapacitated person, and intentionally inducing that incapacity.
Attorney Ronald A. Sellon