(concurring in part and dissenting in part, with whom Cowin, J., joins). I agree that a new trial is required, but I disagree with the reasoning of the court.
1. The evidence does not warrant an instruction under Commonwealth v. Burke. Although the defendant objected to the judge’s instruction on the question whether the complainant was “wholly insensible so as to be incapable of consenting,” his objection went to the judge’s failure to instruct on the complainant’s “incapacity” in the terms he had requested. In particular, the defendant requested an “incapacity” instruction that would have required the Commonwealth to prove that the complainant was unconscious. He now argues for the first time that the “wholly insensible” instruction should not have been given because the evidence does not support a finding that the complainant was unconscious, or nearly so. We review a challenge to a jury instruction on a ground not specifically brought to the attention of the trial judge under the standard of a substantial risk of a miscarriage of justice. See Commonwealth v. Chapman, 433 Mass. 481, 489 (2001).
I disagree with the court and believe that because the evidence does not support a finding that the complainant was “wholly insensible so as to be incapable of consenting,” see Commonwealth v. Burke, 105 Mass. 376, 380 (1870), a Burke instruction should not have been given. In that case, the court held the Commonwealth may prove lack of consent if it shows the complainant was “wholly insensible,” in a state of “utter stupefaction,” or in a “state of unconsciousness,” terms the court used interchangeably, “so as to be incapable of consenting.” The evidence here fails to establish that the complainant had the requisite state of mind (or absence thereof) as exemplified by her testimony that she remembered telling the defendant at least three times that she did not want to have intercourse, and that she tried to kick him and she tried to push him off her. See Commonwealth v. Goldenberg, 338 Mass. 377, 383, cert. denied, 359 U.S. 1001 (1959) (where complainant had been drugged by defendant but was sensible of what he was doing to her yet made no objection and offered no resistance, court said, “This is not a case where [the complainant] is incapable of consent by reason of stupefaction, unconsciousness or helplessness,” citing *601Commonwealth v. Burke, supra). Contrast Commonwealth v. Moran, 439 Mass. 482, 491 (2003) (Burke instruction warranted where intoxicated complainant was asleep each time defendant started performing sexual acts on her, and after waking she felt drugged and unable to act).
The complainant here also testified that she remembered sitting in the front seat of the police car before being raped, and pushing buttons that activated the siren. She recalled that the defendant was angry, and that he told her to sit in the rear seat of the police car and not touch anything. She remembered that the defendant had removed his duty belt, climbed into the rear seat of the police car, and removed her clothing. Within thirty minutes, the complainant telephoned police and reported she had been raped by a Methuen police officer. She was taken to a hospital less than one hour later, where a nurse recorded her condition as “agitated,” “upset,” and “distraught,” but “alert and oriented.” This evidence is insufficient to meet the standard of showing the complainant was “wholly insensible,” or in a state of “utter stupefaction,” or a “state of unconsciousness” such that she was incapable of consenting. See Commonwealth v. Burke, supra at 380-381. There is no evidence that the complainant had no capacity to consent.
Of course, an instruction is proper if it is supported by any hypothesis of the evidence. See Commonwealth v. Ascolillo, 405 Mass. 456, 464 (1989). However, the evidence of the complainant’s intoxication on which the judge presumably relied in deciding to give the Burke instruction also does not support a finding that she was incapable of consenting. An expert opined that, based on a retrograde analysis of the complainant’s blood alcohol in a sample taken at the hospital approximately one and one-half hours after intercourse, and taking into consideration her body size and her lack of food consumption, her blood alcohol level at the time of the intercourse would have been between 0.176 and 0.240. The expert further opined that such an elevated blood alcohol level was likely to produce disorientation, loss of judgment, impaired perception, lethargy, imbalance, slurred speech, impaired comprehension, and confusion. Admittedly, the evidence shows she was highly intoxicated, but this is not enough. The evidence must show that the complainant’s “state of insensibility” was such that she “had no power over *602her will” (emphasis added). Commonwealth v. Burke, supra at 379. In effect, there must be a showing of total incapacity to consent. Here, the evidence of intoxication does not support a finding beyond a reasonable doubt that this complainant had “no power” to consent. I would hold that the Commonwealth failed to produce evidence that could support a finding beyond a reasonable doubt that the complainant was totally incapable of consenting, and therefore a Burke instruction should not have been given.
■ 2. The instruction created a substantial risk of a miscarriage of justice. Although I believe it was error to give a Burke instruction, a proper Burke instruction would not have created a substantial risk of a miscarriage of justice. The jury were instructed, conformably with Commonwealth v. Burke, supra, that if the Commonwealth proved the complainant were “wholly insensible as to be incapable of consenting,” then the amount of force required to commit rape was that necessary to accomplish sexual intercourse. I disagree that this instruction is confusing, or, as the defendant contends, that it lowers the Commonwealth’s burden. Because the Commonwealth fell so far short of meeting its burden, the jury probably did not conclude the defendant only used the amount of force needed to accomplish intercourse.
The problem comes in a later portion of the instructions, as the court points out, ante at 595-597, part 2 (c), where the judge addressed the separate element of the complainant’s lack of consent. The judge instructed the jury that submission because of fear is not consent, and added, “The person has to be free to exercise her will without restraint.” She then instructed that, as to the evidence of the complainant’s consumption of drugs and alcohol, “You may take into consideration any evidence you find credible on the issue of her sobriety in assessing her ability to consent under such circumstances.” This instruction made no reference to the instruction on force, nor did it inform the jury that their consideration of the evidence of the complainant’s sobriety should be focused on the question whether the Commonwealth proved beyond a reasonable doubt that she had been rendered “wholly insensible as to be incapable of consenting” such that the amount of force required was merely that needed to perform intercourse. Instead, the instruction permitted the *603jury to find that intoxication, like fear, could support a finding of lack of consent if the Commonwealth proved the complainant’s free will was impaired or restrained. I agree with the defendant that this instruction lowered the Commonwealth’s burden by permitting a finding of lack of consent based on intoxication alone. This created a substantial risk of a miscarriage of justice and a new trial is required. Although this is one of the reasons cited by the court for reversing the conviction, I would reverse the conviction for this reason alone.
The court reverses the conviction in part because the judge instructed the jury, in response to their question, that the words “wholly insensible,” taken together, should be given their common meaning. I believe that instruction was correct. Although it would have been preferable to repeat the entire phrase “wholly insensible so as to be incapable of consent” and thereby provide context for the words “wholly insensible,” the judge answered the question asked by the jury.
3. The new standard under Commonwealth v. Burke. Today the court holds that the Burke standard is not limited to cases where a complainant is “unconscious,” or nearly so, but includes cases where “the complainant’s physical or mental condition was so impaired that she could not consent.” Ante at 597. The court also inserts a model instruction, ante at 595 n.19, that reflects the court’s opinion. However, I would insert the word “totally” before the phrase “incapable of consenting” in the model instruction. The devil lies in the details that render use of the model instruction appropriate. I already have stated my reasons why a Burke instruction was not appropriate in this case, and I will now discuss my reasons for disagreeing with the use of the model instruction in cases where the evidence suggests a condition less than unconsciousness or total incapacity to consent.
I believe that this case significantly changes the law of rape. Hereafter, a person who has sexual intercourse with one who is highly intoxicated but capable of interacting with others, a common occurrence, does so at great risk that when the effects of the alcohol wear off, the other person will claim that intercourse occurred without consent. Moreover, where the standard had been virtual unconsciousness, a defendant must have known there was no consent. Under the standard announced today, a *604defendant could not possibly know the complainant was in an incapacitated state that prevented giving or withholding consent. Indeed, in this case, the Commonwealth relied on scientific analysis of the complainant’s blood alcohol level and expert testimony to show a state of mind that the court holds warranted a Burke instruction. If expert testimony is needed, a defendant could not possibly know, based on his or her untrained observations of the complainant’s sobriety alone, that the complainant was incapable of consent.
The court makes clear that, as provocative as the evidence shows this complainant had been, the evidence also shows that her level of intoxication warrants a Burke instruction. This places a defendant who is as highly intoxicated as the complainant in the anomalous and unfair position of defending against evidence of a complainant’s mental state, admitted in evidence to show the complainant’s incapacity to consent to intercourse, an element of the Commonwealth’s case, but unable to present the same type of evidence on the question of his or her own intent to have intercourse. See Commonwealth v. Troy, 405 Mass. 253, 262-263 (1989) (intoxication has no mitigating effect on general intent to have intercourse or other elements of rape charge). Where the defendant’s intent to have intercourse and the complainant’s intent not to have intercourse are both elements of the Commonwealth’s proof, and where the intent to have intercourse either was mutual or it was not, the effects of intoxication should apply equally to the respective intent of each party to the intercourse. This should be so because the question of fact to be determined as to each is qualitatively the same: whether intercourse was intended. After today, however, the concept of diminished capacity and its relative, specific intent, see Commonwealth v. Henson, 394 Mass. 584, 592 (1985), will apply to the mental state of a rape complainant, but not to the mental state of a defendant.
When the standard was unconsciousness, it was probably open to both parties to show total incapacity to form the requisite intent. Now, although a defendant may be able to show through evidence of his own unconsciousness a total incapacity to form the requisite general intent to have intercourse, the Commonwealth no longer needs to show unconsciousness on the part of the complainant. Its burden as to the complainant’s capacity to *605intend to have intercourse is henceforth reduced. The direction of this imbalance will be determined exclusively by the prosecutor, as can be seen from the following illustrations.
If this complainant had had intercourse with a willing and eager child under the age of sixteen years, in all likelihood she would have been charged with statutory rape, and evidence of her sobriety would not have been admitted because it would not have been relevant to her intent to have sexual intercourse. Commonwealth v. Troy, supra. However, if the prosecutor decided to charge the child with rape, the degree of the complainant’s sobriety short of unconsciousness now has significance and hereafter will be admissible on the issue of consent. Turning closer to the facts of this case, if there had been no intercourse here and the complainant had been charged with indecent assault and battery for having grabbed Blache’s crotch, evidence of her sobriety would not have been admissible. It is highly unlikely that the court in Commonwealth v. Burke, 105 Mass. 376 (1870), understood that its holding would permit evidence of sobriety short of unconsciousness on the issue of the complainant’s intent to have intercourse.
The decision in this case makes the complainant’s capacity to consent a highly disputable issue, something akin to diminished capacity, evidenced by debilitating intoxication, to form a specific intent to have intercourse. See, e.g., Commonwealth v. James, 424 Mass. 770, 788-789 (1997). By accepting what was essentially the Commonwealth’s argument in this case, evidence of intoxication now may be offered to show that the complainant (but not the defendant) lacked the capacity to intend intercourse. Essentially, the Commonwealth may now show the complainant lacked specific intent to have intercourse. The defendant’s intent remains tethered to the law concerning general intent, although the focus of the case for the defendant is the mutuality of intent to have intercourse. This case changes the focus from what was once an easily ascertainable objective fact, i.e., unconsciousness, to a fact that, as was seen in this case, requires expert testimony. It also may well expose complainants in some cases to disclosure of medical and mental health records, and even examination by a physician, including, but not limited to, a psychiatrist or a psychologist. This was not necessary under our prior law.
*606The court suggests that case law after Burke was “less than clear in defining what must be shown in order for a jury to find the complainant was incapable of consenting, particularly in relation to the complainant’s consumption of alcohol and drugs.” Ante at 589-590. Curiously, the court relies on such cases for support in its ultimate holding.
In one such case, Commonwealth v. Ascolillo, 405 Mass. 456 (1989), there was no analysis to suggest that evidence of a mental condition less than “wholly insensible so as to be incapable of consenting” was relevant. In that case the defendant apparently attempted to recast the victim’s clear resistance to his attempts at intercourse and her assertions that she did not want to have intercourse with him as a “seizure” from a “cocaine overdose.” Id. at 464. He claimed that thereafter she consented to intercourse. Id. at 458. The Ascolillo court accepted the defendant’s diagnosis as evidence warranting a Burke instruction, and compared her condition to those of the victims in Commonwealth v. Helfant, 398 Mass. 214, 217, 221 (1986) (victim injected with Valium and rendered unconscious), and Commonwealth v. Burke, supra (victim in state of “utter stupefaction” caused by drunkenness), and distinguished her condition from that of the complainant in Commonwealth v. Goldenberg, 338 Mass. 377, 383 (1959) (victim drugged by defendant, but was sensible of what he was doing to her). See Commonwealth v. Ascolillo, supra at 464.
Commonwealth v. Simcock, 31 Mass. App. Ct. 184 (1991), another case that figures prominently in the analysis of today’s opinion, is the first case to hold a Burke instruction may be given where “the evidence fell short of suggesting the victim was in a state of stupefaction or unconsciousness.” Id. at 195. That case, however, is based on a faulty reading of Commonwealth v. Ascolillo, supra. The Simcock court glaringly failed to mention that the Ascolillo court cited and relied on the evidence that the victim had suffered what was described as a “seizure from cocaine overdose,” which the court determined warranted the giving of a Burke instruction. Id. at 464.
The standard of “wholly insensible,” “utter stupefaction,” and “unconsciousness,” by which a complainant has heretofore been deemed to be incapable of consenting to intercourse, is a *607fair and workable standard from which the court today departs in favor of a standard that needlessly complicates certain rape cases, and has great potential to produce unfair results for defendants and unwanted intrusions into the private affairs of complainants. In the future we can expect the Commonwealth to try rape cases, as here, like drunk driving cases. I respectfully dissent.