COMMONWEALTH vs. SCOTT A. MCKAY.

WILKINS, J. The defendant was convicted of assault with intent to commit rape. He argues that the judge

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committed reversible error because (1) women were improperly excluded from the jury, (2) evidence that the victim was a virgin was improperly admitted when her reputation for chastity had not been challenged by the defendant, and (3) the judge failed to instruct the jury properly on the possibility that they might return a verdict for the lesser included offence of simple assault.

The incident occurred in Franklin Park in Boston during the early morning hours of a summer night in 1971. The defendant and the victim had attended a casual gathering of young people on top of a hill in the park where beer had been consumed. The defendant, who was about twenty years old, was ostensibly walking the girl home. She was sixteen. They had not met previously. Most of the young people at the casual gathering were acquaintances of hers. The defendant apparently knew only a few of the persons at the gathering.

The details of the actions of the victim and the defendant are not important to the issues presented to us. It is sufficient to say that, in response to a call that a woman was screaming in the park, a Boston policeman searching the area found the defendant lying on top of the victim, each substantially naked from the waist down. The defendant testified that he had hit the girl to settle her down (there was evidence that she had bruises on her face), that she consented to his subsequent advances, but that because he had been drinking, he was incapable of having intercourse with the girl although he had intended to. She testified that he punched her and forced himself upon her and that she did not consent in any respect to what the defendant did. Other facts bearing on the issues argued to us are set forth below.

1. The defendant first argues that the judge of his own volition excused the first woman who was selected as a juror and that action influenced other women not to serve, with the result that the defendant was denied a fair trial. Because only bench conferences were recorded during the empanelling of the jury, the record does not show the circumstances in which the first woman whose

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name was drawn was excused from jury duty. We do know, however, that one woman did in fact sit on the jury. We also know that, at a bench conference at some undefined point in the course of the empanelling of the jury, counsel for the defendant asked the judge to note "my exception to your Honor's excusing juror 216, the first female called, without explaining whether or not she wishes to sit or not wished to serve [sic]." The judge made no responsive comment, nor was he obliged to. The statement of counsel is not wholly clear as to what appeared to him to have happened.

This prosecution involved a proceeding in which a woman could have been excused from sitting as a juror upon her representation and a determination by the judge that she might be embarrassed if she were to sit. [Note 1] We assume that the judge excused the first woman without explaining to her that she had a right to request that she be excused. Apparently further potential women jurors were excused by the judge and clearly one was seated, in circumstances not directly explained on the record. [Note 2] Defence counsel did not take an exception to the excusing of any other woman, but he did take an exception to the denial of a motion for a mistrial on the ground that "[t]he defendant is not being tried by a representative sampling of the community, having systematically excused the females." A colloquy between counsel and the judge at this point in the trial suggests that after the first woman to be called was excused, each woman subsequently called as a juror was notified of her right to represent to the court that she would be embarrassed by

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serving. The defendant argues that the action of the judge on his own in excusing the first woman called set a pattern because it may have affected the decision of other women as to whether they would sit.

Our law grants wide discretion to the judge in the jury selection process. G. L. c. 234, Section 1A (first paragraph). In the absence of action or inaction which constitutes a denial of constitutional rights (see Ham v. South Carolina, 409 U.S. 524) or which constitutes an error of law, such as an abuse of discretion, we will not interfere with the trial judge in the jury selection process. On this record there is no basis to conclude that the judge acted improperly. A judge may properly excuse a venireman even in the absence of a defendant and his counsel. Commonwealth v. French, 357 Mass. 356, 400. There was no systematic exclusion of a particular class of potential jurors.

Under G. L. c. 234, Section 32, an irregularity in the empanelling of jurors is not sufficient to set aside a verdict unless the objecting party has been injured thereby. Where, at the request of one party, a judge has improperly excluded members of a class of persons from service on a jury, thereby making that party's peremptory challenges relatively more valuable, we have held that the other party is entitled to a new trial. Searle v. Roman Catholic Bishop of Springfield, 203 Mass. 493. In the case before us, however, there is no such general disqualification of a class of persons, the Commonwealth did not request the discharge of the one woman juror who was not excused, and there is no demonstration, as there was in the Searle case, that a party's peremptory challenges were made relatively more valuable by the action of the judge.

Even if the judge did improperly excuse the first woman whose name was called as a juror without a prior request on her part (an issue which cannot be determined in the defendant's favor on this record), there is no indication that the defendant was denied a fair trial as a result. The defendant does not challenge the statute

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under which women may be excused from sitting in a case of this sort. [Note 3] It would be purely conjectural to conclude that the first woman would have set a different "pattern" for women subsequently drawn as jurors, if she had been notified of her statutory right to request that she be excused. Indeed whatever pattern, if any, was set, it was not so strong as to influence the woman who did serve as a juror to conform to it. Moreover, it is far from apparent that the presence of more women on the jury would have benefited the defendant, whose conduct, even on his own testimony, was far from exemplary. The possibility that a woman juror would have identified sympathetically with the alleged victim seems at least as great as the possibility that, as the defendant contends, "women better than men would have been able to appreciate the propensity or need of the prosecuting witness to have lied in this situation."

2. The defendant next contends that it was error for the judge to allow the principal witness to testify, in response to a question on direct examination, that she was a virgin at the time of the alleged offence. It was, of

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course, incumbent on the prosecution to prove that the actions of the defendant were carried on without the consent of the victim. Commonwealth v. Dies, 248 Mass. 482, 489. The girl had already testified that she had never seen the defendant before that day and that she was engaged to be married about two months later. In a prosecution for assault with intent to rape where the consent of the victim is in issue, it is not error to admit evidence that the victim was a virgin. The fact that the victim was a virgin, if the jury so found, is clearly relevant on the material and important issue whether in the circumstances she would be inclined to consent to the defendant's conduct.

At the time the victim was asked about her virginity, consent had not been presented as a defence. If the defence had not been based on consent but had been based on an alibi, for example, this testimony of the witness might have been improper because where consent is not in issue, the victim's virginity or lack of it would probably have no bearing on any litigated issue and might confuse and prejudice the jury. See State v. Borde, 209 La. 905, 910. However, the issue of consent was later raised by the defendant (as it seemed obvious it would be), thus eliminating any prejudice to the defendant which would otherwise have resulted from the victim's testimony concerning her virginity. Better practice would call for the introduction by the prosecution of any evidence concerning the witness's virginity only after the question of her consent had been raised on cross-examination, by the defendant's testimony or otherwise.

Testimony by the victim that she was a virgin at the time of the incident has been admitted in other States where the question of consent was in issue. See State v. Bradley, 72 Ariz. 16 (where the defendant did not even challenge the victim's testimony but did challenge expert medical testimony to the same effect); People v. Ross. 179 Cal. App. 2d 684, which does not follow an old California case (People v. O'Brien, 130 Cal. 1) which on

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rather obscure reasoning concluded that the admission of the victim's testimony that she was a virgin was reversible error.

An issue which in theory is much the same as the one before us arises when the prosecution in a rape case, or in a case involving assault with intent to commit rape, offers expert medical evidence tending to show that the victim was a virgin at the time of the alleged crime. Courts in other States have held that, where the issue of the consent of the victim was involved, medical evidence tending to show the victim's apparent loss of her virginity is admissible. State v. Bradley, 72 Ariz. 16. People v. Pollock, 25 Cal. App. 2d 440. Russom v. State, 105 So. 2d 380 (Fla.). Edmondson v. State, 146 So. 2d 395 (Fla.). Gifford v. People, 148 Ill. 173, 177-178. State v. Aveen, 284 Minn. 194. Myers v. State, 105 Tex. Crim. App. 426. See Annotation, 35 A. L. R. 3d 1452; Underhill, Criminal Evidence (5th ed.) Section 760 (p. 1747). Such evidence may tend to show "the great unlikelihood of the prosecutrix having given her consent under such circumstances to defendant, a stranger she had just met." State v. Bradley, 72 Ariz. 16, 21. Although such evidence may be inflammatory in certain cases, where the defence of consent is involved, it is "neither unreasonable nor unfair for the prosecution to anticipate the obvious defense strategy and to introduce this evidence upon its case in chief." State v. Aveen, 284 Minn. 194, 197.

The defendant contends that allowing the witness to testify as to her virginity runs contrary to the principles lying behind our established rule in rape cases that, "[a]lthough evidence of a general reputation for unchastity may be admitted in rape cases, evidence of instances of prior intercourse with other persons is inadmissible." Commonwealth v. Gardner, 350 Mass. 664, 668. See Commonwealth v. Regan, 105 Mass. 593; Commonwealth v. Kendall, 113 Mass. 210. The defendant contends that if specific prior acts of intercourse with others may not be shown by a defendant, evidence as to the witness's virginity

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may not be shown by the prosecution unless the defendant raises the question of the witness's reputation for lack of chastity.

We believe that there is a rational basis for distinguishing between admitting evidence that the victim was a virgin and excluding evidence of specific prior events of intercourse in which the victim participated. Our rule that prior specific instances of intercourse may not be presented by the defence is justified on the ground that collateral questions relating to those specific events would prolong the trial and divert the attention of the trier of fact from the issues. See Miller v. Curtis, 158 Mass. 127, 131. The victim's lack of virginity, moreover, has little probative value on the issue of consent because the victim's consent to intercourse with one man does not imply her consent in the case of another. Underhill, Criminal Evidence (5th ed.) Section 767 (pp. 1766-1767). On the other hand, the status of the victim as a virgin at the time of the alleged crime has far more probative value on the issue of consent. In addition, the prospect of the consideration of collateral matters is not raised to the same degree when testimony of the victim's virginity is introduced as it is when the defence undertakes to present evidence of one or more incidents of prior acts of intercourse in order to establish the prosecuting witness's unchaste character. [Note 4]

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Although it is not essential to our decision, we note that the defendant was not likely to have been prejudiced by the testimony of the witness that she was a virgin. Without objection a hospital record was introduced in evidence, and from it the medical record of an examination of the witness was read to the jury, which included the finding of a "[p]atent hymen." Even prior to the Commonwealth's opening defence counsel stated to the judge that he had no objection to the Commonwealth's indicating to the jury that the hospital record would be introduced in evidence.

3. The defendant lastly contends that the judge should have instructed the jury on the possibility of returning a verdict of guilty of the offence of simple assault, a crime which is a lesser included offence within the crime of assault with intent to commit rape. Commonwealth v. Fischblatt, 4 Met. 354, 356. Commonwealth v. McCarty, 165 Mass. 37, 38. See Commonwealth v. McCan, 277 Mass. 199, 202-203 (assault is involved as subsidiary and incidental to rape, as is assault and battery). Cf. Commonwealth v. Thompson, 116 Mass. 346, 348 (assault and battery).

The judge is not obliged to charge a jury concerning a lesser included offence if the evidence would not warrant a finding that the defendant was guilty of that offence. Commonwealth v. Campbell, 352 Mass. 387, 392. Here the evidence provides no "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense" of assault. Am. Law Inst., Model Penal Code, Section 1.07 (5) (Proposed Official Draft, 1962). The victim and the defendant differed as to the circumstances, but both testified that he struck her. If there was any crime, it was at least an assault and battery, and not just an assault. Therefore, the defendant's exception to the refusal of the judge to instruct on the crime of assault has no merit.

The judge instructed the jury that the indictment was broad enough to include the crime of assault and battery. Reading the judge's charge as a whole, assuming the

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defendant has properly reserved his rights on this question, we believe that the jury were adequately instructed that they had the option of finding the defendant guilty of only the lesser crime of assault and battery.

Judgment affirmed.