Commonwealth v. Portonova

The defendant was convicted of indecent assault and battery on a mentally retarded person (G. L. c. 265, § 13F, as inserted by St. 1973, c. 468) by directing the victim to rub her vagina.1 He appeals, claiming (1) because the offense is indecent assault and battery “on a mentally retarded person” (emphasis supplied), the Commonwealth must show some sexual contact between the perpetrator and the victim, and (2) his conviction must be reversed because the judge incorrectly charged the jury by omitting the element of lack of consent.2

1. The victim’s testimony included the following. The…