Massachusetts Appeals Court Affirms Indecent Assault and Battery Conviction Involving Tattoo Appointment

The Massachusetts Appeals Court’s decision in Commonwealth v. Jose Benevides, No. 25-P-668, addresses an important question about consent in indecent assault and battery cases: when a person agrees to a professional service that requires some physical contact, does that consent extend to intimate or sexualized touching outside the scope of the service?

The Appeals Court said no. A person who agrees to receive a tattoo consents to touchings that are necessary and appropriate for the tattoo procedure. That consent does not extend to unnecessary, inappropriate, or sexualized touching of private areas. Because the jury could find that the defendant touched the complainant’s pubic area and inner thigh outside the scope of the tattoo appointment, the Court affirmed his conviction for indecent assault and battery.

The Background of the Case

The complainant made an appointment with the defendant, Jose Benevides, to get a tattoo. He had previously given her three tattoos without incident. They had no other relationship.

This appointment was for a five-inch tattoo on the front and outside part of her right thigh. After the defendant placed the stencil and began applying ink, he put his ring and pinky fingers directly on her pubic area. At first, she thought he may not have realized where his fingers were. He apologized when he realized.

But as the appointment continued, his comments and conduct made her believe the touching was not accidental.

The tattoo became inflamed, and the complainant began shaking from pain. The defendant applied cream, first rubbing aggressively, then massaging the area. The complainant made a comment about getting a nice tattoo and a calming massage. The defendant responded that they could “extend those services to something more exciting.”

The complainant felt uncomfortable and told him that was not what she was there for. She said she just wanted the tattoo. The defendant then made a sexual joke. She repeatedly told him that she did not want to extend the services in that way and did not feel comfortable.

After the tattoo was finished, the complainant wanted to leave. The defendant told her he needed to apply ointment and wrapping, so she got back on the table.

Then he said she had extra ink. The complainant looked down and saw a very small amount of ink near her pubic area, where her leg creased. The defendant said he would get it for her. She told him no, that it was okay, and that she could take care of it when she showered at home.

Despite that, the defendant shoved his hand between her thighs and began rubbing her inner thigh in what she described as a sexual manner. When he asked whether she wanted to “have fun” with him, she said no. He responded, “But my hands were already there earlier,” which the complainant understood as confirmation that the earlier touching of her pubic area had not been accidental.

The complainant eventually left, called for a ride, and later reported the incident to police.

A District Court jury convicted the defendant of indecent assault and battery.

The Legal Issue on Appeal

The defendant did not argue that the touching was not indecent. He also did not argue that the touching was accidental.

Instead, he argued that the Commonwealth failed to prove lack of consent. His theory was that because the complainant agreed to let him tattoo her thigh, she had consented to touchings in an area that included the thigh and nearby private areas. He also argued that the Commonwealth had to prove she withdrew that consent before the alleged indecent touching occurred.

The Appeals Court rejected both arguments.

Consent Is Limited by Scope and Purpose

The central point of the decision is that consent is not unlimited. Consent to one type of touching for one purpose does not automatically become consent to any touching nearby or related in time.

The Court compared the tattoo appointment to a medical procedure. A patient who consents to a medical procedure consents to touchings that are necessary and appropriate for that procedure. But that consent does not extend to unnecessary or inappropriate sexual touching.

The same principle applied here. The complainant consented to a tattoo on the front and outer part of her right thigh. That meant she consented to touchings necessary and appropriate to applying that tattoo. It did not mean she consented to the defendant touching her pubic area or inner thigh in a sexualized manner.

That limited scope of consent was enough for the jury to find lack of consent.

The Commonwealth Did Not Have to Prove Withdrawal of Consent

The defendant’s withdrawal-of-consent argument also failed.

Withdrawal of consent matters when someone initially consents to the specific sexual contact at issue and later changes their mind. But that was not this case. The complainant did not initially consent to sexual contact. She consented to a tattoo.

Because the jury could find that the complainant never consented to unnecessary or inappropriate touching of her pubic area and inner thigh, the Commonwealth did not have to prove that she later withdrew consent to that touching.

The question was not whether she clearly revoked consent to sexual contact. The question was whether she ever gave that consent in the first place.

The Appeals Court held that she did not.

The Evidence of Lack of Consent

The Court held that the evidence was sufficient even from the limited scope of the tattoo appointment itself. But there was more.

The jury could also consider the complainant’s repeated statements that she did not want to “extend the services” and that she was only there for the tattoo. They could consider her discomfort with the defendant’s sexual comments. They could consider that when the defendant offered to wipe ink near her pubic area, she said no and told him she could take care of it herself. And they could consider that he touched her anyway.

Those facts gave the jury ample basis to find lack of consent beyond a reasonable doubt.

Why This Decision Matters

Commonwealth v. Benevides matters because it clarifies how consent works in professional or service-based settings involving physical contact.

Many lawful services involve touching. Tattooing, massage, medical care, physical therapy, personal training, and similar services may require contact with parts of the body. But consent to a service is not consent to sexual touching. Nor is it consent to touch private areas for reasons unrelated to the agreed service.

The decision reinforces a practical rule: consent is tied to purpose, context, and scope.

A person may consent to a tattoo on the thigh without consenting to contact with the pubic area. A patient may consent to a medical exam without consenting to unnecessary sexual touching. A client may consent to a massage without consenting to sexual contact.

The fact that some touching is allowed does not mean all touching is allowed.

Defense Takeaways

For defense lawyers, Benevides is a reminder that consent arguments in indecent assault and battery cases must be precise.

First, counsel should identify exactly what touching the complainant agreed to, if any. Consent to one form of contact does not necessarily cover another.

Second, counsel should focus on the scope of the service or interaction. What was necessary? What was appropriate? What was expected? What was outside the bounds of the agreed encounter?

Third, if the defense is based on consent, counsel should be careful about whether the case truly involves withdrawal of consent or whether the Commonwealth’s theory is that consent was never given to the specific touching.

Fourth, statements and conduct surrounding the touching matter. Sexual comments, apologies, refusal to stop, or statements suggesting prior intentional touching can all support the Commonwealth’s theory.

Finally, in professional-contact cases, the jury may compare the alleged touching to what would normally be appropriate for the service being provided.

Practical Impact for Massachusetts Indecent Assault and Battery Cases

The practical impact of the decision is straightforward. In Massachusetts, a defendant cannot defeat an indecent assault and battery charge simply by showing that the complainant consented to some physical contact in the same general area of the body.

The Commonwealth may prove lack of consent by showing that the touching exceeded the scope of what was agreed to.

That is especially important in cases involving service providers, medical professionals, tattoo artists, massage therapists, or anyone whose work involves physical contact. The legal question will often be whether the touching was necessary and appropriate for the agreed purpose, or whether it crossed the line into indecent, unprivileged contact.

Conclusion

Commonwealth v. Benevides affirms a basic but important principle: consent has boundaries. A person who agrees to receive a tattoo does not consent to sexualized touching of private areas unrelated to the tattoo procedure.

The Appeals Court held that the jury could reasonably infer that the complainant consented only to touchings necessary and appropriate for the tattoo on her front and outer thigh. Because the alleged touchings of her pubic area and inner thigh were outside that scope, and because the surrounding evidence further supported nonconsent, the conviction for indecent assault and battery was affirmed.

Call to Action

If you or someone you love is facing an indecent assault and battery charge in Massachusetts, the details matter. These cases often turn on consent, context, the scope of any agreed contact, and what the Commonwealth can prove beyond a reasonable doubt.

The lawyers at Benzaken, Sheehan & Wood, LLP defend people accused of serious criminal offenses throughout Massachusetts, including Brockton, Worcester County, Boston, Plymouth County, Norfolk County, and the surrounding courts.

Contact Benzaken, Sheehan & Wood, LLP today to schedule a confidential consultation and protect your rights.