As reported yesterday, high-profile athletic trainer Rob McClanaghan was arrested on charges of rape and drugging for intercourse. The suspect was transported by the BPD Fugitive Unit in coordination with members of the Warwick RI Police Department into custody and will be extradited on fugitive from justice charges. As a straight warrant was issued, at a minimum a clerk magistrate had to agree that probable cause existed. Additionally, with the high threshold of the Sexual Assault Unit of the Boston Police Department, it is believed that the evidence at this juncture must be very strong. However, how are rape and drugging for intercourse defined?
Under Mass Gen. Laws Rape is defined in Chapter 265 § 22(b) while the enhancement is listed in Chapter 272 § 3. rape and drugging for intercourse is defined as whoever applies, administers to, or causes to be taken 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 intercourse with such person shall be punished by imprisonment in the state prison life or for any term of years not less than 10 years. As such, if convicted, Mr. McClanaghan must serve at least ten years in prison. Usually, rape is a crime punishable by not more than twenty years, but the drugging element enhances the charge to be punishable to up to life in prison with a ten-year minimum mandatory. How might the Commonwealth prosecute this case and how might McClanaghan’s attorney(s) defend it?
The Commonwealth’s Case
In any victim case, the case always revolves around the victim including credibility. Rape cases are especially victim-centric because, without victim testimony, there usually would not be a case to move forward with. The victim had to provide information to law enforcement for law enforcement to believe a crime had in fact been committed. That begs the question; what kind of evidence would have been provided? First, victim testimony is paramount to the successful prosecution in a rape case. I have to think there was a rape kit performed at the hospital after the incident as well as the victim’s medical records. What kind of drug was it? Was it a date rape drug? Were there independent witnesses? With the high-profile nature of this case, the prosecution can never have too much evidence. Remember the State has to prove each and every element beyond a reasonable doubt. The defense doesn’t need to prove anything, and a lack of evidence is grounds for the Defendant being found not guilty by a jury.
The Defense’s Case
The defense’s case is much different. As stated previously, the defense doesn’t have to prove anything. The burden never shifts to the defense. What could the defense be? It depends. It depends on what evidence the Commonwealth has. What is the alleged drug? Is it a date rape drug? That is important information to have when preparing for the defense. That is because the attorney is unlikely going to be able to argue consent as a defense if it is a date-rape drug. No jury is going to agree with it and the criminal defense attorney would likely lose any and all credibility with a jury by simply insinuating it. However, if the alleged victim took the drug knowingly and voluntarily (whatever the drug may be), the statute isn’t violated. However, if it is another type of drug then consent does become an option. That is because the statute doesn’t “extend to a defendant who merely shared drugs or alcohol with a person who knowingly and voluntarily accepted the drugs or alcohol.” Commonwealth v. LeBlanc, 73 Mass. App. Ct. 624. The words of the statute require some forceful action or deceit or trickery on the part of the defendant that amounts to more than merely supplying drugs or alcohol to a willing individual. Id.
Every individual is presumed innocent until proven guilty. That is the foundation of our criminal judicial system. However, with the Sexual Assault Unit of the Boston Police Department intimately involved, I have to think the evidence in support of guilt must be substantial, if not overwhelming.
Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888) NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He was previously a felony prosecutor, he prosecuted thousands of misdemeanor and felony criminal cases. He has tried 41 jury and non-jury trials. He frequently appears on Law & Crime as a Legal Analyst and speaks nationally on sports law issues. You can follow him on Twitter @TympanickLaw.