Appeals court upholds conviction in ex-police officer's case

HADLEY GREEN/Staff file photoIn this 2018 file photo, Brian Butler, a former Salem police officer who was found guilty of indecent assault and battery, listens to an impact statement given by the victim during his sentencing in Salem Superior Court.

SALEM — The Massachusetts Appeals Court has upheld the 2018 sexual assault conviction of former Salem police patrolman Brian Butler.

In a 25-page decision released on Thursday, the court concluded that Butler was not entitled to have jurors consider whether he mistakenly believed the victim, a young man from Cape Cod in protective custody at the police station, had consented to having his genitals fondled. 

"Even accepting for the sake of argument that there was sufficient circumstantial evidence to raise a question as to the defendant's actual belief of (the victim's) consent, the evidence taken as a whole did not raise an issue that the defendant's belief was objectively reasonable," wrote Appeals Court Justice Gabrielle Wolohojian.

"The defendant, an experienced police officer, could be presumed to know that a person cannot be held in protective custody unless he is incapacitated and, therefore, that (the victim) was in fact incapacitated," Wolohojian wrote for the Appeals Court panel. 

And beyond that, the court suggested that any "consent" obtained by a police officer was not willingly given, taking the opportunity to suggest that lawmakers move to address the fact that the law does not specifically prohibit police officers from engaging in sexual activity with people in custody. 

"In the closely-related situation of people held in correctional institutions, the Legislature has eliminated consent as a defense where a correction officer engages in sexual relations with an inmate," Wolohojian wrote. 

While that law does not apply to cases involving police officers, the court said it believes it shows the intent of legislators. "It makes no sense to think that persons in police custody are any more capable of voluntarily consenting to sexual contact with their jailers than are inmates in correctional facilities. And we note that it would make good sense for the Legislature to correct this gap in legislation."

Butler, 59, the former husband of Salem's police chief, is serving a 3 1/2 to 5-year state prison term at the Massachusetts Treatment Center in Bridgewater for one count of indecent assault and battery.

A jury found that Butler, who was the house officer at the Salem police station on the morning of Oct. 31, 2016, had sexually assaulted a man who was in protective custody at the station, when he reached under a blanket the man had been given to keep warm and touched the man's buttocks, then his penis. 

Butler was also charged with rape after taking the man into a broom closet inside the booking area, but the jury found him not guilty of that count. 

Butler's appeals lawyer, Robert Sheketoff, also argued that the trial judge was wrong to exclude evidence that the victim is gay.

The court said that it took into account the "power imbalance" between the young man and Butler, noting that Butler controlled his release from custody and ability to contact his family, and even what he was wearing. 

"By contrast (the victim), who was naked, was trapped at the station and completely dependent on the defendant's help to leave," Wolohojian wrote. "There were no other officers around to whom (the victim) could appeal for help; the defendant made sure that he was alone with (him) and out of view of others." 

"In addition, the defendant manipulated (the victim's) vulnerability," the decision went on to say. When the victim tried to return to his cell immediately before the indecent assault and battery occurred, Butler called him back to the desk and kept him there by giving him another chance to make a phone call. 

It was while he was on that phone call, with his sister, that Butler sexually assaulted him.

The court found that while the victim had said "yes" in response to Butler asking if he could "go inside," it was only due to the fact that "he was terrified and afraid of what might happen if he refused the defendant's advance."

The court also sharply rejected an argument that the judge should have allowed jurors to hear about the victim's sexual orientation.

"The defendant's argument that 'it is more probable that a gay man would consent to the sexual advances of another man than a heterosexual man would' is unsupported by legal authority, citation, or logic," the court found. "A sexual assault victim's sexual orientation has no bearing on his or her consent regardless of whether he or she is heterosexual or homosexual."

Butler resigned after being charged in the case. Last year, the victim and the city of Salem reached a $90,000 settlement in a separate civil lawsuit. 

Sheketoff did not immediately return a call for comment.

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis. 

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