May 20, 2015

Massachusetts Sex Offenses: Not Limited to Who & What You Might Think Of

I usually write about Massachusetts legal decisions & issues in this blog, but here’s an interesting subject that applies no matter the state:

When people think of the terms “sex offense,” “sex crime,” or “sex offender,” most people think of the classic pervert wearing a raincoat and nothing else, flashing himself (or herself) to unsuspecting victims. Or they think of rapists; or child molesters. And when people think of these types of images, they usually conjure up an image of a sleazy, dirty, street-level, alley-occupying degenerate, hiding behind some bushes waiting to pounce, fangs and all.

While, very unfortunately, some people like these do exist, as a Boston sex charges lawyer, I can assure you, that these stereotypes are not true. I’ve represented many a person charged with a Massachusetts sex crime, who was both not guilty of the crime, AND who was an upstanding member of his/her community, and a very successful person. Sex crime allegations are especially dangerous: The mere accusation can ruin a person’s livelihood and life – even if the person is found not guilty, he or she will always be known as “the one was accused of (rape/indecent assault and battery/prostitution, etc.).”
And even when people do commit a Massachusetts sex offense, they are not at all always the “underbelly of society.” Many are very successful and decent people, who just made a bad decision.

Case in point: The death of a multi-millionaire Google executive Forrest Timothy Hayes, who hired a call girl to come to his 50-foot yacht in Santa Cruz, California. Here was a multi-millionaire, and reportedly a good person, who wanted sex with a prostitute who had a certain “look.” Unfortunately for Mr. Hayes, he was later found dead on his 50-foot yacht, moored in the Santa Cruz, Calif. Harbor. The call girl who showed up, brought drugs with her, and allegedly injected Mr. Hayes with heroin, reportedly causing his death. The prostitute, Alix Tichelman, was arrested pleaded guilty to involuntary manslaughter, administering drugs, drug possession, destroying or concealing evidence, and agreeing to and engaging in prostitution, according to media reports. She had originally pleaded not guilty to the charges in 2014. Mr. Hayes was 51 years-old and the father of five.

Almost any decent, otherwise law-abiding person can become charged with a Massachusetts sex offense. It's always important to remember this, and that before the eyes of the law, a defendant is presumed innocent until proven guilty beyond a reasonable doubt.

We should all remember that.

May 11, 2015

Gloucester Mass. Police Chief Announces Heroin Addicts Will Be Put In A Hospital, Not Jail : A Profile in Sanity

I can’t say how pleased and proud I am that finally, sanity peeks through in the miserable failure that is the “War On Drugs.”: In the face of the current Massachusetts heroin crisis, a local Police Chief declares that opiate addicts walking in to his Police Department will not be arrested, but instead taken to a local hospital for addiction treatment. Why? Because heroin users are MEDICAL ADDICTS, not violent criminals – and they belong in a hospital and a medical environment, not in a court room and a prison environment. As a Massachusetts drug charges attorney, I can guarantee you that.

Imagine that: Medical treatment for heroin addiction, not punishment. Shocking, isn’t it? … And how sad that this idea isn’t universal policy at police departments across Massachusetts.

Gloucester Police Chief Leonard Campanello announced to the media on May 4 that opiate and heroin addicts who come to the Gloucester Police Department will not face Massachusetts drug charges — even if they are in possession of drugs or drug paraphernalia such as syringes at the time they walk into the police station. Instead, they’ll get the help the so desperately need: What Police Chief Campanello suitably describes as an “angel” to walk them down the road toward detox recovery, and help them get the medical and hospital treatment they need. The medical treatment will partially come from Lahey Health Behavioral Services, which was recently awarded a $4.8 million grant to assist repeat patients in Lahey’s hospital emergency departments. Many of these “repeaters” to Massachusetts hospital emergency departments can return to an ED up to a dozen times a year, and present with addiction or mental illness issues. Lahey Health Centers will now provide these patients with the resources they need to get their lives back together, from detox services to food to transportation and housing.

Campanello, previously a narcotics detective who knows what he is talking about, posted the announcement on Facebook, and made his laudable, and entirely logical, reasoning crystal clear: Opiate addicts are little different from everyday people that are addicted to cigarettes and alcohol. “The reasons for the difference in care between a tobacco addict and an opiate addict is stigma and money,” Campanello wrote. “Petty reasons to lose a life.” The Massachusetts heroin epidemic has exploded in the past two years or so, making national headlines in the process. More than 1,000 people died of opiate overdoses in Massachusetts in 2014, higher than ever recorded before. In Gloucester alone, in just the first five months of this year, four people have died from heroin and opioid overdoses. The chief couldn’t correlate how much crime in Gloucester stems from heroin addiction, and he doesn’t need to: Whether it’s small or great, the need for a sane and rationale approach is the same. Quoting Chief Campanello, “It’s big enough for us to change the fundamental way we deal with addicts and recognize it as a disease and not a crime, in and of itself, that deserves punishment. We’re committed to the idea of attacking the demand rather than attacking the supply,” Police Chief Campanello told Boston Fox 25 News.

Essex County District Attorney Jonathan Blodgett’s office, which prosecutes crimes occurring in Gloucester and other Massachusetts North Shore communities, has so far reserved final comment on the Gloucester Police Chief’s plans. The Essex DA’s office already has a diversion program offering non-violent drug addicts treatment in lieu of prosecution, which is admirable. Project COPE in Lynn operates the program. In 2014, 72 people enrolled in the program and more than 50% successfully completed it. Six percent of those who enrolled went on to commit another crime. As a Dedham Massachusetts criminal defense lawyer, I can assure you that’s figure is pretty low. Make no mistake: Drug DEALERS will get no break from this program, which is aimed at addicted users. The Gloucester Police Department plan will utilize seized drug money to pay for supplies of Narcan, the prescription drug used to reverse opiate overdoses. Anyone needing Narcan can get it from the Gloucester Police at almost no cost. Summing up the logic of this approach, Chief Campanello said, “We will save lives with the money from the pockets of those who would take them,” Campanello wrote.

This man deserves a medal – literally – for the courage he has shown to speak sanely and rationally about dealing with the Massachusetts drug policy. And be assured: It takes courage for a Massachusetts police chief to break ranks with the majority of police departments who blindly arrest sick drug addicts for prosecution as Massachusetts drug offenders. While the John F. Kennedy Profiles in Courage Awards usually go to someone on the national or international level, Gloucester Massachusetts Chief Leonard Campanello should be the next recipient of this award. In the meantime, Chief Campanello plans to meet with federal officials, including Chief Campanello is traveling to Washington, D.C. to meet with Massachusetts Senators Elizabeth Warren and Ed Markey as well as Congressman Seth Moulton, to discuss more federal aid and support to combat local efforts combating the Massachusetts heroin epidemic.

April 29, 2015

Massachusetts Breathalyzers Tests: Flaws Require Independent Review

The recent revelation that many of the breathalyzer machines used by many Massachusetts police departments, has resurrected a debate between law enforcement and prosecutors on the one side, and criminal defense attorneys on the other, over whether and how accurate these machines really are.

The controversy began in mid-March, when a fairly high number of breathalyzer results were found to be unreliable due to failures that were not fully explained at that time. The issue reached a fever pitch last week, when District Attorneys in eight Massachusetts counties - Suffolk, Middlesex, Essex, Cape & Islands, Worcester, Norfolk, Plymouth, and Northwestern counties - disclosed that their prosecutors were temporarily suspending the introduction of breathalyzer results into evidence in drunken-driving cases that were pending in their offices. Last week, The Boston Globe ran a lead editorial, calling for the temporary ban to be adopted statewide by all Massachusetts District Attorney’s Offices.

The Globe is wise to make such a call. The premise that breathalyzer machines can detect alcohol in a person’s breath, has never really been disputed. The problem has always been with the accuracy of the machines: If the machines are not regularly serviced, maintained, and calibrated accurately by specially trained police department users, the blood alcohol readings these machines produce can be highly doubtful. As a Dedham, Massachusetts OUI lawyer, I can’t tell you how many Massachusetts OUI charges I've had dismissed due to faulty breathalyzer readings. An example? I ‘ve had more than one OUI client, who was arrested on Massachusetts drunk driving charges, who had ingested nothing more than breath mints or mouthwash – which breathalyzer machines can mistakenly detect as alcohol. More commonly, the machines are not calibrated accurately, and thus the results they produce are flawed.

Yesterday, Massachusetts Public Safety Secretary Daniel Bennett announced that his office’s review of the problem has determined that fewer than 150 OUI/DUI cases were found to be flawed, reportedly due to mistakes police officers made in calibrating the machines, and not because of machine malfunctions. The state Public Safety Department also reported that the widely–used Draeger 9510 breathalyzers were functioning properly. Public Safety Secretary Bennett stated that his office will partner with the affected District Attorney’s offices to locate the 150 defendants whose cases may have been impacted by flawed breathalyzer test results.

However, more than one interested party in this controversy sees that as the fox guarding the chicken coop. To quote the Massachusetts Bar Association, “Some in the [legal]defense community would question the findings of a police department or police agency regarding the very device that they use to prosecute and convict individuals for drunk driving.” Count me as one of those parties. As a Wrentham, Massachusetts OUI/DUI lawyer, I’ve seen too many Massachusetts drunk driving prosecutions that were outright unjustified, given the breathalyzer testing involved. The MBA has called for Massachusetts Attorney General Maura Healey to commence an independent investigation into the device’s reliability, and I think this would be a wise move to assure public concern over this issue.

Everyone – myself included – opposes drunk driving. We need to remain ever vigilant about reducing the number of drunk drivers on the road. But we mustn’t do so at the expense of important legal rights and protections for all of us. If anyone disagrees with that, you might feel otherwise if you’ve ever been arrested for using mouthwash.

April 13, 2015

False UVA Campus Rape Allegations Highlight Need for Caution In Massachusetts Campus Rape Accusations

If you pay attention to the subject of campus rape and college student sexual assaults, you couldn’t have missed the mainstream media’s reporting of Rolling Stone Magazine’s very public retraction of a controversial story it published last November 2014, titled “A Rape on Campus.”

The story described a horrific gang rape of a female student at the University of Virginia identified only as “Jackie”, reportedly by seven different men at a campus fraternity house. The story understandably unleashed a renewed debate about college campus sexual assaults; specifically, about the actual extent of campus sexual assaults in the U.S., and whether colleges and universities are aggressive enough on this issue. It has also been alleged by more than one women’s advocacy group that many colleges and universities intentionally hide or under-report campus sexual assaults. Reading the published story, one is left with the impression that the University of Virginia was a “poster boy,” if you will, for college officials’ indifference to the subject of student rape. The hue and cry that resulted, was predictable: Marches and protests on several college campuses; ‘fist pumping protests’ by female students’ unions; and women’s advocacy groups fanning the flames at each and every step along the way, decrying ‘male-led indifference’ at the top of colleges and universities across the country.

Turns out there was just one minor problem with the story: It was completely false. Worse, neither the Rolling Stone reporter who wrote the story, nor any of her editors at the magazine, caught multiple factual errors and inconsistencies before publishing the story. Gradually after the story’s publication last November, fact-checking exposed several inconsistencies in the alleged victim’s story. The Charlottesville, Virginia Police Department determined it had found no evidence to support the claims of the alleged victim. Eventually, Rolling Stone magazine requested that the Columbia University Graduate School of Journalism conduct an independent, external review of the story. Last week, Columbia University released its conclusions that the manner in which Rolling Stone vetted, reported, edited the story was “a story of journalistic failure that was avoidable. [The failure] encompassed reporting, editing, editorial supervision and fact-checking,” which the venerable journalism school reported on its website. Rolling Stone’s Managing Editor Will Dana issued a formal apology on the magazine’s website, and the female reporter who wrote the story also apologized in a written statement.

Yet, neither the reporter, her editor, nor anyone else at Rolling Stone who was involved with the story, has either been terminated, or even disciplined, in any manner that I am presently aware of. As a Boston campus sex offense lawyer, I find this disturbing. But before I practiced law, I was a Media Relations Spokesperson and editor of two news publications where I held public affairs management positions. So, I know a few things about news reporting, writing, and editing that the average Massachusetts sex crimes attorney doesn’t. And for Rolling Stone to allow its employees involved in this story to essentially receive no consequences whatsoever in this matter, is in my view as a Massachusetts college campus sex offense lawyer, journalistically irresponsible.

Accusing someone of raping another person is an extremely serious accusation. It can and does destroy the accused’s life: Even if the accused is ultimately acquitted, he (or she – yes, that can happen, too) will always be remembered for being “charged with rape.” A Massachusetts rape accusation is in effect, an electronic Scarlet Letter. There are always two sides to every Massachusetts rape allegation – and this needs to be remembered.

Hopefully, this incident with Rolling Stone Magazine will answer the question many people ask me when they learn I’m a Massachusetts sex offense attorney, “How can you defend someone accused of rape?” The answer: “Because the person accused may be innocent.”

March 22, 2015

Massachusetts OUI/DUI Arrests: St. Paddy's Day May Beat New Year's

OK, now that St. Patrick’s Day is over, I’m sure we all know a few people who had a “few too many” celebrating the Irish holiday. As long as those people weren't operating a motor vehicle and could only hurt themselves with a bad hangover, that’s one thing. But to those who imbibed too much and then got behind the wheel, they need to get their sanity back on.

If you took a poll and asked people what day of the year involved the highest number of drunken driving accidents, I’ll bet most people would say New Year’s Eve. Close, but not exactly. It seems that distinction goes to the venerable St. Patrick’s Day, at least according the National Highway Traffic Safety Administration (NHTSA.) According their statistics, St. Paddy’s Day is one of the deadliest highway deaths days of the year, with a reported 276 drunk-driving fatalities occurring March 17 between 2009-2013. NHTSA claims that three-quarters of those deaths involved operators who were driving at or over twice the legal limit (.08, in Massachusetts.) Remember: That fatality figure of 276 represents deaths only, not major injuries such as brain injuries, burn injuries, paralysis and amputations. Ad those facts in, and the picture is pretty gruesome.

St. Patrick’s Day has become so known for drunk driving accidents that car-ride services have stepped in to address the problem: Uber offered $5 for every ride taken between March 17 and March 22 to some chapters of Mothers Against Drunk Driving (MADD,) and the rise service Lyft offered free ride credits to any customer who was riding with a driver named Patrick, Pat, Patty or Patricia on St. Patrick’s Day. A great combination of civic responsibility and smart marketing.

As a Wrentham Massachusetts OUI/DUI lawyer, I’ve seen my share of drunk driving cases. Many times, the defendant was not legally drunk, and should not have been arrested. But other times, the opposite is true. While we fight tooth and nail for all our clients arrested for Massachusetts OU/DUO charges, no matter what the circumstances they were arrested under, we also counsel in private those who need to hear the plain truth: Do NOT drink and drive – ever. The risk of hurting someone else, hurting yourself or a loved one, or being arrested, is simply not worth it.

So matter what day or the year it is, play it smart – don’t drink and drive. Or you may need a saint (a legal one, that is,) faster than you think.

February 24, 2015

Massachusetts Campus Sex Assaults: Guns Not The Answer

College campuses are hotbeds of youthful activity: Fraternities and sororities. Football and varsity sports games. Lots of consumption of alcohol. Drugs. Partying. Linking up between students (as opposed to dating). Put it all together, and at many, many colleges and universities, when it comes to college sexual assaults, those things are recipes for disaster. Today, sexual assaults on campus are in the spotlight, and people rightfully look for a way to prevent rapes at colleges and universities.

So, what do you think would happen if someone were now to add guns to the mix?

I’m not joking. Gun-rights advocates in 10 states are pushing for "reforms," as they call it, so that female students -- very young, usually 18-22 year old kids -- can carry guns on campus. These people believe that all colleges and universities need these so-called “campus-carry laws,” so that anyone who even thinks of raping a female college student would think twice. Yes, these people believe that arming 18-22 year old college students with handguns, is the answer to campus sexual assaults. In my view as a Massachusetts campus sex assault attorney, most of these people are extremists. If you doubt that, consider this quote from a sponsor of a bill in Nevada that would allow 18-22, very young, women to carry loaded handguns on campus: "The sexual assaults that are occurring (on college campuses) would go down once these sexual predators get a bullet in their head." That's a direct quote from a Nevada Assemblywoman. I won't give her the publicity by naming her here.

In my experience as a Massachusetts college sex assault attorney, most campus rapes occur between students who know each other. They all live together, play together, and study and learn together. Massachusetts is the college capital of the nation. When you consider the fact that the vast majority of Massachusetts sex assault accusations that occur on campuses, occur because too much alcohol was involved at a party, or because someone lost their judgment in the wrong moment, or that jealousy or emotional revenge might be involved, the above quote from that Nevada politician is downright scary. Aside from specializing in Massachusetts college sex offense accusations, I'm a Boston rape lawyer: I've seen many, many cases involving accusations of Massachusetts rape and other sex crimes, outside college campuses: The type of sexual assault accusations that take place on campus almost never involve violence of the type that one thinks of when one hears the word "rape": A person being jumped from behind on a side street with a knife to their throat; someone being attacked in a dark parking lot with a gun to their head; someone being beaten terribly. Those are circumstances of violent physical, sexual assaults in which perhaps carrying a gun would be advisable. But in my professional experience as a Boston college student sex offense lawyer, campus sexual allegations between students almost always involve a situation where one or both parties to an encounter went "too far" due to a loss of judgment on the part of one or both people. Understand: That is not to condone such conduct -- but it is to place it outside the context of a typical rape victim scenario, where horrific violence is often involved. Give a 20 year-old kid a loaded gun, and someone could be shot to death or maimed for life due to "going too far."

I can't fathom what people like this Nevada politician think is going to happen on college campuses, when very young, immature, intoxicated and drug-taking students, find themselves confronted with loaded guns. Those guns are going to be fired – or should I say misfired – and lots of young people are going to die. The innocent and the guilty. There are going to be countless gun accidents.

A better solution than arming very young college students with guns? Training young women in the art of self-defense. For example, I am an orange belt in Combat Sambo, which is a form of Russian self-defense (martial arts) without using weapons. It is remarkable how EASY it is to defend and protect yourself, and it is up to the individual person to determine just how much he or she wants to hurt an attacker. You can simply inflict some minor pain, or choose to break the person’s wrist or ankle, temporarily blind them, strike them in the groin, crush their foot, or strike them in the throat, so that you can defend yourself and then get to safety. These are all effective defense weapons and strategies – without the threat that someone will get a bullet in the head.

If a woman is in a threatening position where she is about to be raped, she should rely on some good self-defense – and not a loaded gun. Arming very young, 18-22 year old students with loaded guns on campus, is one of the worst ideas I've heard about in a long, long time.

January 31, 2015

Domestic Violence: Is the NFL Getting the Message, or Just Running An Ad?

Well, tomorrow is Super Bowl Sunday, that annual excuse to spend 10 hours in front of a TV screen, stuffing your face, imbibing probably more than your share of alcohol, and screaming like a banshee every time “your” team scores a touchdown. (Can you tell I’m not a big sports fan? Unusual for a guy, I know, but that’s part of who I am.)

As everyone knows, the TV ads that run during the Super Bowl are among the most expensive – if not the most expensive – that the networks sell throughout the year. The half time shows involve performances that cost tens of millions of dollars for perhaps 20-25 minutes time, and evoke memories of past performers like Michael Jackson and Madonna. But it’s the commercial ads that really rake in the money. How much money? NBC is reportedly charging $4.5 million for a 30 second spot during the Super Bowl.

So it didn’t pass without notice when the NFL announced that it will run a Public Service Announcement (PSA) spot during the Super Bowl that will emphasize the importance of preventing domestic violence. The PSA was the result of a partnership between the NFL and No More, an organization formed last year to combat domestic violence and sexual assaults. The ad depicts a scene of a house where items have been knocked to the floor, and a woman is calling 911. The woman pretends to be ordering pizza, so that her abuser doesn’t become aware she is calling the police. The spot ends with the tagline: “When it’s hard to talk, it’s up to us to listen” and displays the website for No More. No NFL branding appears in the spot.

According to media sources, the NFL’s ad agency, Grey, developed the ad, paid for production costs, and donated the prime-time spot, reportedly worth $4.5 million. No More has also been running similar PSAs during other NFL games, and plans to post the PSA spot on their own web site in the near future. While the NFL should be lauded for this effort, as a Wrentham Mass. Domestic Violence lawyer, I can assure you that altruism is not the league’s sole motivator here: The NFL has come under intensive scrutiny since botching the Ray Rice domestic assault incident last year, which many observers believe reflected an organizational attitude of indifference when it comes to the league’s players engaging in domestic violence. So to be honest, this effort is part damage control.

As I said, I’m a Wrentham District Court defense lawyer. Foxboro Stadium, of course, is home to the New England Patriots, and Foxboro is within the jurisdiction of Wrentham District Court. As a Wrentham District Court domestic violence attorney, I’ve seen more than my share of clients that were charged with domestic violence in connection with attending a Patriots game. This is no surprise: Mix the violence of football, the heavy use of alcohol at these games, and a combustible experience can result. I'm not saying that football = domestic violence. It's not that direct or that simple. But the nature of the sport, plus all the surrounding behaviors that go with it, can sometimes be problematic when it comes to domestic violence.

So if you’re a sports fan, enjoy the game. Just remember: The abuse starts and stops on the field. And if it doesn’t, you may find yourself suddenly needing a very experienced Massachusetts domestic violence lawyer.

January 29, 2015

Shoplifting In Massachusetts: Increase Seen Over Christmas Season

The holidays and the Christmas season are over, and aside from retailers adding up their sales and profits, they’re also noticing something else: A sharp spike in Massachusetts shoplifting charges were filed during this past holiday season.

According to The Global Retail Theft Barometer, a survey of worldwide retailers, and estimated $1.8 billion was shoplifted from retailers across the U.S in the approximately 4 weeks prior to Christmas Day. Unfortunately, an increase in shoplifting is not uncommon over the holidays. Mobbed stores and distracted clerks create an environment that makes it easier to slip something slim like a tablet computer into a jacket or pocketbook, or hide a clothing item underneath a coat. Unemployment and economic stress can contribute to a spike in these crimes, but people steal everything from food to luxuries.

Many experts claim the economy has little to do with shoplifting. They claim that shoplifters steal for a variety of reasons that have little relation to the economy. Some people do it for some kind of rush or thrill. For others, it has more to do with filling a psychological emptiness. "Shoplifting is generally a crime of opportunity and opportunities abound at the holiday," says Barbara Staib, a spokeswoman for the National Association for Shoplifting Prevention, a nonprofit that provides shoplifting prevention education programs.

As a Wrentham, Mass. Shoplifting defense lawyer, I can attest to the fact that shoplifting is surprisingly common. Reliable estimates say that one in every 11 Americans shoplift, according to the National Association for Shoplifting Prevention. Here in Massachusetts, two courts in which I practice see a lot of Massachusetts shoplifting charges – Wrentham District Court and Dedham District Court: This largely due to the very large retail shopping centers in these towns – Dedham has Legacy Place, a very popular outside retail mall, and Wrentham has Wrentham Village Premium Outlets – a famous collection of upscale retailers offering discounted merchandise. These popular retail locations draw millions of people every month.

Shoplifting is no minor matter: In Massachusetts, the penalties for shoplifting can be serious.

• Shoplifting merchandise valued at less than $100: Maximum fine of $250 for first offense; maximum $500 for second offense; maximum of two years in jail for a third offense.
• Shoplifting merchandise valued at more than $100: Maximum of 2 ½ years in jail and a $1,000 fine.
• Larceny under $250: Maximum one year jail sentence and a $300 fine.
• Larceny over $250: Unlike the offenses above, this is a felony offense, and carries a maximum penalty of 5 years in state prison and a $25,000 fine.

As a Massachusetts shoplifting lawyer, my experience has been that people shoplift for primarily psychological reasons. Kleptomaniacs and Shoplifters Anonymous offers support groups and treatments at various locations around the country. While professional psychological help is sometimes needed for long-term help, what is definitely needed right after someone has been accused of shoplifting is an experienced Massachusetts shoplifting lawyer – someone who has defended hundreds of these types of Massachusetts theft crimes.

Without the right shoplifting defense lawyer, a conviction can result that will follow a person for a long time down the road – many years. Too often, shoplifting defendants don’t fight these charges aggressively enough, because they want to put the whole embarrassing experience behind them. That can be a serious mistake. A shoplifting conviction will result in long-term consequences, including making it much harder to land a job that involves handling either money or merchandise.

January 13, 2015

Massachusetts Campus Rape Charges: Students Should Beware Activists’ Attempts to Redefine Rape.

More than one person over the course of my career has asked me – usually with disbelief written all over their faces – how I can defend people accused of rape and other sexual crimes. My answer is always the same: Because the person who is accused may not be legally guilty of the particular Massachusetts sex crime they happen to be charged with.

While that usually gets the person to think twice, what’s disturbing is the attitude – more specifically, the pre-conceived notions – that most people start off with on this subject. This attitude almost translates to: “Anyone who is accused of rape or other sex crime, must be guilty.” The retort that usually silences them for good is this: “Really? Then I suppose that if you were accused of a sex crime, by your own reasoning, you’d have to be guilty, wouldn’t you?” A blank stare is the universal response to that comeback. But beyond this attitudinal presumption of guilt that people harbor about rape and other sex offenses, is something just as, or even more, pernicious: Twisted “new” definitions of what rape really is – fueled largely by militant feminists and liberal ‘activists’ on college campuses across the United States. This is all fueled by political correctness – that toxic idea that has said for too long now that one can’t say anything that could even remotely offend anyone, at any time, in any place, for any reason.

Rape has always been defined legally as: “The unlawful carnal knowledge of a woman by a man forcibly and against her will.” “Unlawful”, “Force” and “against her will” have always been central to this definition. (By the way: While the feminine pronoun has always been used in this definition, it should go without saying that a man can be raped, also.) Rape has always been viewed as a violent crime, savage in its commission, and always defined by a lack of consent. However, that time-honored legal definition is apparently not good enough for many “activists” in universities in this country. Exhibit “A” on how college campuses across America are twisting the time-tested legal definitions of rape? A recent study by Reason Magazine revealed that more than half of MIT students believe that rape and sexual assault "can happen unintentionally, especially if alcohol is involved.”

Say that again? In other words, a majority of students think that if alcohol is involved, one can accidentally rape. From Reason Magazine: About a fifth of female undergraduates and a quarter of male undergraduates surveyed agreed that "when someone is raped or sexually assaulted, it's often because the way they said 'no' was unclear or there was some miscommunication."

What? Rape can now result from a “miscommunication”? Let me say again: Unless the charge is statutory rape, in which consent can be present 100% and if the victim is under the age of consent, then rape is almost always a violent, brutal, savage, sick act. In my opinion as a Boston rape defense lawyer, it's a pretty bad sign when something as personally devastating and horrifying as rape has now been “redefined" to the point that college students think it can be the result not of a violent attack, but a mere “miscommunication.” How, you might ask, exactly can rape occur “accidentally”? Answer: When consent to sex is defined the way it is in California, which is: An "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity."

Once more on that? That kind of pathetic redefinition of the crime of rape is what our politically-correct world has come to. It' isn’t hard to see why drunk college students might struggle with that one.

Once more, let me make it unambiguously clear: Actual rape is an abhorrent, violent affront to another person - of whatever gender. It is vile, and it is criminal – and when it really occurs, it should be punished to the maximum extent appropriate under the circumstances. But when we as a society start changing and relaxing the time-tested legal definitions of this sex crime, we can all be in trouble. Why? Because you, or someone you care about, just may be the next person who is charged under this “new,” "updated" interpretation. Both men and women should think about that – because women can be charged with rape, too. Granted, it’s usually oral rape or digital rape (use of finger or hands,) but it’s not uncommon.

December 28, 2014


In an important legal decision upholding the convictions of two defendants for criminal harassment, the Massachusetts Supreme Judicial Court (SJC) ruled that internet harassment (or “cyber-harassment”) does not constitute free speech, protected under the First Amendment to the U.S. Constitution.

Veteran Boston Herald courthouse reporter Laurel Sweet reported on the story, noting that the case under review, Commonwealth v. William P. Johnson, involved two Andover real estate developers named William and Gail Johnson. Both of these defendants were convicted of criminal harassment in Lawrence District Court in 2011. William Johnson was sentenced to 18 months in jail; his wife Gail Johnson was sentenced to six-months in jail for her role in the harassment scheme. The pair wanted to subdivide and develop land in Andover, but an abutting neighbor, James J. Lyons Jr., and his wife, Bernadette Lyons, opposed their plans, as well as did other neighbors. Both the District Court in Lawrence as well as the SJC found that the Johnsons launched their harassment campaign after the Lyons opposed the Johnsons’ development plans. According to the SJC, the Johnsons’ harassment included William Johnson falsely reporting to the state Department of Children and Families that James Lyons had sexually abused a boy. “They literally tried to have our kids taken away from us,’’ James Lyons, who is now a state representative, commented that “These people invested [their] time and money to torture my wife, my boys, and myself.’’

The Johnsons also paid a third party to post false information online that claimed that the Lyons’ had property they wished to sell or give away, resulting in their phone lines and email accounts being deluged by strangers responding to the false ads. The postings even included Craigslist ads which advertised free golf carts on their yard for pickup by anyone, providing the Lyons’ address and phone number. Even worse, the Johnsons paid this third party to also post an online ad under the Lyons’ name, claiming that the Lyons’ had were selling their deceased son’s Harley Davidson motorcycle for $300. The Lyons never lost a son. All in all, abominable behavior.

Both of the Johnsons were convicted under M.G.L. Ch. 275, Sec. 43A, which criminalizes various forms of intentional harassment.

While this conduct by the defendants was reprehensible, the legal question was whether or not the internet postings that the Johnsons placed online to harass the Lyons, constituted “protected free speech” under the First Amendment. The answer: No. The Court held that “a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets” is not constitutionally protected speech.

The lesson? People cannot hide behind a computer screen if they are trying to intentionally harass another person. As a Boston criminal defense attorney, I think this is a sound ruling. Imagine what would result if the court had ruled that people could, essentially, legally get away with this type of egregious conduct. ‘Cyber harassment’ is becoming far more too common in our society today. This ruling says loud and clear that this type of conduct is a serious crime. Such conduct is the province of cowards and bullies. A ruling protecting the defendants here would have offended sound notions of not only legal jurisprudence, but common sense

An important point in this case: This ruling does not create an independent legal claim — either criminal or civil — for online harassment or online bullying. Instead, it clarifies that the application of the state’s criminal harassment statute, M.G.L. Ch. 275, Sec. 43A to online harassment does not violate the free speech clause of the U.S. Constitution.

December 18, 2014

First Circuit Court of Appeals Restores Sanity To Kosilek Case

Readers of this blog know that I’ve blogged previously on the twisted subject of Robert Kosilek, and his multi-year legal battles with the Commonwealth of Massachusetts, more specifically with the Massachusetts Department of Corrections. Kosilek, of course, is the (now famous, due to his legal battles) psychotic murderer, who killed his wife in 1990, then dumped her body in a trash dumpster. At trial, he was found guilty of murder in the first degree and sentenced to life in prison without the possibility of parole.

However, all that time to think about things, brought a ‘revelation’ to this esteemed guest of the Commonwealth: To wit, that he wasn’t Robert Kosilek, he was really a woman – Michelle Kosilek. And he wanted something “done” about that. And he wanted the taxpayers to pay for that something – specifically, ‘sex reassignment surgery’ otherwise known as a sex change operation – to turn Robert into Michelle. The Massachusetts DOC summarily rejected this request, at which point Kosilek sued the DOC – and, stunningly, won in lower court decisions. In 2012, much of the case seemed closed in Kosilek’s favor as U.S. District Court of Massachusetts judge Mark Wolf ruled in Kosilek’s favor in 2012 – ordering the Commonwealth of Massachusetts (read: its taxpayers,) to provide and pay for a sex change operation for Kosilek. What was judge Wolf’s legal reasoning? That to deprive this insane murderer a sex change operation, would constitute “cruel and unusual punishment,” in violation of the Eighth Amendment to the U.S. Constitution.

As a Boston, Massachusetts criminal defense attorney, I was shocked at that contorted vacancy of legal reasoning. The Eighth Amendment’s ban on cruel & unusual punishment was meant to ban twisted and medieval methods of punishment and torture such as beheadings, burning people at the stake, drawing & quartering prisoners, floggings, and similar. That a federal judge could equate the state’s refusal to provide a psychotic, convicted murderer’s demand for a sex change operation, with “cruel and unusual punishment,” is, in plain English, downright scary.

Undeterred, the state appealed the decision to the U.S. First Circuit Court of Appeals, and this past January (2014,) the insanity continued when a three-judge panel of the Appeals Court upheld Wolf’s decision. What this showed was not only that appeals to the court had lost, but that so had appeals to sanity. Common sense seemed lost in liberal judicial rulings. But valiantly and admirably, the state then asked for a full bench review, with all five judges that sit on the court hearing the case (this is legally known as an “en banc” review.)

Thankfully, both sound legal reasoning and sanity finally prevailed which led to Tuesday’s reversal. Importantly, the full court noted that Wolf had inappropriately substituted his own judgment for doctors involved in the case, who did not unanimously agree that the surgery is the only acceptable solution for the Kosilek’s ‘condition,’ and his resulting ‘depression.’ Further, the court noted that Wolf “circumvent[ed] the deference that is owed to prison administrators’’ under federal laws when addressing the issue of the safety of prison inmates.

I also practice in courts outside of Boston, and as a Norfolk County criminal defense lawyer, I hope that this judicial restoration of sanity to legal reasoning, will provide hope for those who have lost hope in our judicial system. Because it is laughable, legally unsupportable decisions like judge Wolf's, which cause many people to wonder what has happened to the courts and the judicial system in this country.

But Kosilek and his liberal supporters probably won’t stop, even now. Because there’s one more appellate avenue: The U.S. Supreme Court – and you can be sure this case will be appealed to that Last Legal Word. If the court were to agree to hear the case, in my professional opinion all legal bets would be off: That court is packed with liberals, like Sonia Sotomayor and Elena Kagan.

December 5, 2014

Bill Cosby Rape Allegations: How To Respond - Legally?

More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them.

This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following:

• A lack of credible witnesses.
• A lack of forensic (scientific) evidence, in the form of semen and other bodily fluids, which are collected as part of a “rape kit” that almost all hospital Emergency Departments and Primary Care doctors use when an allegation of rape has been made. This includes an examination of the orifices (vagina, mouth, anus) that have allegedly been penetrated, together with tissue samples from the affected areas.
• The absence of a SAIN (Sexual Assault Intervention Network) Interview. This is a law enforcement protocol that allows for one police interview of the alleged victim to be shared across several law enforcement agencies (the investigating Police Department, the District Attorney’s Office, the State Police, the Medical Examiner’s Office, and if necessary federal agencies such as the FBI and ICE (Immigrations & Customs Enforcement.) This protocol documents the results of a trained police officer’s interview with the alleged victim, and spares the alleged victim from the need to be interviewed multiple times by multiple law enforcement agencies and personnel.
• A lack of photographic evidence, either of the scene of the alleged crime or of the victim’s body (see above.)
• And most importantly, the expiration of most Statutes of Limitations applicable where the alleged sexual assaults and rapes took place. It is my understanding that the Cosby alleged sexual assaults took place in several states, including New York. While each state has its own statutory period beyond which a prosecution for rape and sexual assault cannot be brought forward, most states have 15- to 20- year statutory periods of limitations.

As of the date of this post, it’s my understanding that most of these allegations from the women that have come forward so far, involve sexual assaults that allegedly took place more than 20 years ago. If this is accurate, then in my professional opinion as a Boston sex assault attorney that successful prosecution of these cases is going to be extremely difficult. That doesn't mean Mr. Cosby is factually innocent of these allegations. In fact, I think that it’s highly unlikely that these several women have all come forward with these almost identical accusations, and that none of them is telling the truth. The fact that I am a Massachusetts sex charges lawyer, doesn't mean that I can’t admit that ‘where there’s smoke, there’s fire.’ And it certainly doesn't mean that Mr. Cosby isn't going to need top-flight legal talent representing him – whether in the court of public opinion or a court of law. But as of right now, I think most of the damage that Cosby is going to suffer is going to be reputational and financial.

These allegations, and the prosecutorial difficulties raised by the statutes of limitations involved, have raised new debates about whether states should abolish or revise statutes of limitations in rape and other sexual assault cases. I’ve been a Norfolk County rape defense lawyer a long time, and I’ve seen a lot of these cases. I think that extreme care should be used before tampering with these statutes. They were created for good reasons: Massachusetts rape and sexual assault accusations, like those anywhere, can devastate an innocent person’s life. They are a “special breed” of crimes, and are the type that should be investigated and resolved as promptly as possible, not left open to accuse someone of, ‘forever.’