Doctor Denied New Trial for Rape

With Wire Dispatches

A former Harvard-affiliated doctor and a Connecticut physician convicted four years ago of raping a nurse have lost their requests for new trials.

The Massachusetts Appeals Court ruled this week that Arif Hussain, a former clinical fellow in Anaesthesiology 'at the Harvard-affiliated Brigham and Women's Hospital (BWH), and Alan Lefkowitz did not present sufficient grounds for reconsideration of their conviction, which the Massachusetts Supreme Court upheld three years ago.

Not Alone

The two doctor's and another former BWH clinical fellow, Eugene Sherry, were convicted in June 1981 of taking a BWH nurse from a Boston party to a Rockport beach house and raping her. Hussain and Lefkowitz, have since lost their licenses to practice medicine, served six-month prison sentences and lost a series of appeals culminating in the Massachusetts Supreme Court ruling.

Although the high court upheld the conviction in 1982, the pair filed for a new trial because they said the judge in the original trial had made legal errors by excluding certain evidence and in instructing the jury of tape law.

Sherry, who returned to his native New Zealand, took no part in the requests for new trials.

Hussain, now a doctor in Pakistan, could not be reached for comment yesterday. His lawyer, Thomas C Troy of Reading, said yesterday he has not reached his client to tell him of the Appeals Court ruling. He added that he does not know whether Hussain will appeal to a federal court.

The appeal stems from an unsuccessful attempt by Hussain and Leikowitz to introduce evidence showing that the nurse, who was never identified, had told other people that she was raped or nearly raped several times before 1981.

"The defendants argue that the statements would have impeached the credibility of the victim's testimony by illustrating that she had a distorted and exaggerated perception of nonconsensual sexual activity," Appeals Court Chief justice John M. Greaney wrote in his Tuesday decision.

But Greaney added that the issue had already been considered by the state Supreme Court and that the doctors presented no evidence to show that the victim's statements about previous rapes were false.

The two doctors also requested new trials on the basis that the judge had violated their due process rights in his instructions to the jury. They argued that the judge was wrong in refusing to tell the jurors that, in order to convict on rape charges, they must find that Hussain and Lefkowitz knew the victim did not want to have intercourse.

The Appeals Court ruled that the judge's instruction had clearly explained the issue of intent and that "the prosecution has proved if the jury concludes that the intercourse was in fact nonconsensual."

"It is time to put to rest the societal myth that when a man is about to engage in sexual intercourse with a 'nice' woman, 'a little force is always necessary," wrote Justice Frederick Brown in a separate opinion concurring with the Appeals Court majority.

"The essence of the offense of rape is lack of consent on the part of the victim," Brown's decision continued. "'No' must be understood to mean precisely that."