Via Salem News:
Former Brian Butler does not deny that he engaged in sexual acts with a young man in protective custody on the morning of Halloween, 2016, his attorney said Tuesday.
But Butler maintains that those sexual acts, in the booking area of the Salem police station, were consensual, said defense lawyer Kevin Mitchell.
Prosecutors say, however, that the man, who had spent the night in a holding cell, naked but for a blanket, felt he had no choice but to agree when Butler propositioned him. “What else could I do?” prosecutor Kate MacDougall quoted the young man as saying. “I was in fear because he was a police officer.”
And that, the prosecutor argued during a preliminary hearing Tuesday, is not consent, but coercion.
Opening statements are expected Wednesday morning in Salem Superior Court, where Butler is standing trial on charges of rape and indecent assault and battery.
Jury selection got underway Tuesday. Ten jurors were selected as of 4 p.m.
The charges arise from an incident on the morning of Oct. 31, 2016. Butler, now 57, was on duty in the booking room.
The young man, who was visiting Salem for Halloween, had been put into protective custody after drinking heavily and flooding his room at the Clipper Ship Inn on Bridge Street.
The man had taken off his soaked clothing because he found it hard to sleep, according to his statement to police. By the time Butler arrived for his shift, the man had woken up and asked for a blanket and a chance to make a phone call to get a ride home.
The man told investigators that as he made his phone call, Butler reached under the blanket and touched him. The man said Butler then led him to a closet and asked if he could perform a sex act.
During preliminary motions on Tuesday, Mitchell also asked Judge Hélène Kazanjian to tell jurors that it is not against the law for a police officer to engage in consensual sexual behavior.
“I think most people would be surprised to hear that,” argued Mitchell, as MacDougall, the prosecutor, shook her head.
Kazanjian said she would address that request at the end of the trial, in jury instructions.
“There are issues around consent as to whether someone is in fear,” Kazanjian responded.
That will be up to jurors to decide.
MacDougall also argued to the judge that unless Butler testifies in his own defense, she cannot see how his lawyer can be allowed to argue to jurors that the incident was consensual. Lawyers are allowed to argue only facts that are admitted as evidence in a case, either through testimony or exhibits, in a closing argument.
“No one on that stand is going to say it’s consensual, unless Brian Butler testifies,” said the prosecutor, pointing to the witness box.
Kazanjian said, however, it’s possible that Mitchell could elicit testimony from the young man to support his defense.
Mitchell said he cannot say at this point whether Butler will take the stand.
Butler was a 24-year veteran of the department when he was charged. He resigned shortly after the case came to light.
A guilty finding on the rape count carries up to 20 years in prison, and on the indecent assault and battery, up to 10 years.
The case has received heightened attention within the community not only due to Butler’s role as a police officer at the time of the incident, but because he is the husband of police Chief Mary Butler, who filed for divorce on Friday, citing an irretrievable breakdown of the marriage. The two have been separated since the allegations came to light. She has not been present for pretrial proceedings in the case and was not in court on Tuesday.