Boston Criminal Attorney Blog

The Massachusetts Legislature has enacted a number of laws relating to sexual abuse and sexual molestation against underage victims. There are several Massachusetts rape and sexual assault laws, but exactly what does “statutory rape” mean? Most people think they know the correct answer (“Sex with an underage girl”), while the truth is, most people are wrong about that. They’re wrong, because most people don’t know what: A) The word “sex” means legally; B) What “underage” means in Massachusetts; and C) The fact that an alleged victim is not limited to being a girl.

First, though, most people don’t know what “statutory” means. It refers to the fact that the prohibited act is defined by the Legislature, not the courts. Laws can come from a variety of different sources, including the courts. These types of laws are called “decisional law” or common law. “Statutory” means that the law came from an act of the Legislature, who defined what “rape” in this instance is. The relevant statute in Massachusetts is M.G.L. Ch. 265, Sec. 23-23B, which defines statutory rape as follows:

“Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.”

Note four important elements: 1) That the use of force is not described or required, nor any lack of consent. In other words, the alleged victim could theoretically have fully consented to the act, and the crime still occurs; 2) The age of the defendant is not described, nor gender. This means that the alleged defendant could have been the same age as the alleged victim, older, or even younger, and as long as the prohibited act occurred, it is a crime. Also, the alleged defendant could have been the same sex as the alleged victim and a crime still would have occurred; 3) The gender of the alleged victim is not limited to being female. Boys can also be alleged victims of Massachusetts statutory rape, whether the defendant is man or a woman; 4) The prohibited act is with a “child”, defined as being “under the age of 16.” Note the final sentence of the statute: “A prosecution commenced under this section shall neither be continued without a finding nor placed on file.” This denotes the seriousness that the Legislature attaches to this offense, and it means that the charge is not subject to negotiation down to a “CWOF”. In defending these cases, these charges must be dropped, admitted to, or the case tried to a verdict (before either a judge or jury.) Hence, these are the combination of mistakes that most people make when they hear the words “statutory rape.”

While statutory rape is typically the charge that is brought forward when the sex with the alleged victim was or appears to have been consensual and when the alleged victim is under the age of 16, there are, of course, other laws addressing sex with a “minor” – a person under the age of 18. M.G.L. Ch. 272, Sec. 4 defines this crime: “Whoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse shall be punished by imprisonment in the state prison for not more than three years or in a jail or house of correction for not more than two and one-half years or by a fine of not more than $1,000 or by both such fine and imprisonment.” This statute criminalizes sexual intercourse with anyone under the age of 18, and excepting the age difference, is similar to the statutory rape offense, in that it does not mention force or threats or force (hence it criminalizes the act even if consent was present.) Actually, there is another legal vehicle available to the Commonwealth to prosecute these kinds of cases which in my view as a Dedham Massachusetts sex offense lawyer is more appropriate, and that is known as “Contributing to the delinquency of a minor”, proscribed by M.G.L. Chapter 119, Sec. 63. This statute provides for lesser penalties, and removes the stigma of the charge being categorized as a sex offense. The importance of this is that any conviction or guilty plea involving a sex offense will trigger sex offender registration and reporting requirements.

So as you can see, even high school dating relationships can bring drastic legal consequences. Translation: Parents, educate your kids under the age of 18 regarding not only the science and health issues regarding sexual activity, but the potential legal consequences as well.

Our law firm is very experienced when it comes to defending not only statutory rape charges, but all forms of Massachusetts rape and sexual assault charges. If you or someone you know is potentially facing these kinds of legal charges, contact us for a free legal consultation. We can guide you to the best legal outcome possible. Don’t take chances with a firm that handles these types of cases only “now and again”. Your future or the future of the person you care about is too important to risk.

The U.S. Department of Homeland Security (DHS,) in its understandable efforts to rid our cities and communities of immigrants who have committed violent crimes, has developed an interactive cross-referencing program with local police and law enforcement departments, known as the Secure Communities Program. The program is administered and enforced by a division of DHS, which is U.S. Immigration and Customs Enforcement (ICE.) This collaborative effort with local police departments requires that fingerprints obtained from arrests made by local police be automatically cross-referenced with federal immigration databases at ICE. The objective is to identify immigrants with serious and violent criminal records, and use that criminal record as the basis for deporting that person. (While deportation of an immigrant following conviction of a crime is not always done, federal immigration laws do allow for deportation if an immigrant has been convicted of a crime. The Secure Communities Program builds upon that legal foundation.)

On the surface, this approach sounds like common sense. I believe we should deport immigrants who have come here promising to obey our laws, only to commit violent crimes and infect our communities with fear and all the related consequences that violent crime brings to communities. Except that as with so many government programs, good intentions and common sense often get lost in the process of bureaucratic program enforcement. Exhibit A is ICE’s Secure Communities Program: Under the present program structure, an immigrant who is arrested and has a record of any criminal convictions at all – minor or major, nonviolent or violent – is subject to immediate deportation by DHS. Translation: If an immigrant were arrested for a traffic violation, and a fingerprint check showed that he or she was previously convicted of passing a bad check, that person would be deported. This enforcement scheme contradicts and confuses the laudable objective of the Secure Communities program, which is to rid our communities of immigrants who have been convicted of violent crimes.

For this reason, a considerable number of cities and towns across the U.S. and in Massachusetts have had second thoughts about participating in the Secure Communities Program. The City of Boston has been one of those municipalities. The original idea of the DHS/ICE program is a good one, and despite calls for the program’s dismantling, the original goal should not be abandoned. Instead, the program should be re-written to develop specific legal criteria, listing precisely what types of prior offenses constitute a “violent crime.” By no means do I suggest that the list be unnecessarily short, or that the list comprise only extremely violent crimes – only that hearings be held and a consensus reached as to what crimes are to be defined within the Program as meeting the definition of “violent” crimes, and hence subjecting the person arrested to deportation by DHS & ICE. Such a list of crimes, obviously, would include Massachusetts rape, Massachusetts sexual assault, Massachusetts kidnapping, Massachusetts assault and battery and, Massachusetts gun and firearms violations and of course, Massachusetts attempted murder and murder. Further, the final list would of necessity include more violent offenses than listed immediately above.

But the point is to spare immigrants who have a prior criminal record, but not for any violent crimes, unnecessary deportation. As a Boston/Dedham Massachusetts criminal defense lawyer who has seen a lot of violent crime, I think that narrowing the list of deportable offenses under the Secure Communities Program to violent crimes only, will achieve the Program’s sensible objectives, will make us all safer in the process, and will still treat nonviolent immigrants in a rational manner.

The U.S. Supreme Court's recent decision striking down California’s law banning the sale or rental of brutally violent, interactive video games to teenagers is a low point in this country's culture. To say that the day this decision was issued (Brown vs. Entertainment Merchants Association,) was a “sad day,” is far, far too inadequate: It struck a new low point in this country's culture - a culture once civil, dignified and decent; now soaked wet with the sewage of violence, depravity and perversity.

Readers of this blog know that I've written preemptively, and passionately, about this critically important decision that the court was weighing. If you haven’t read my previous posts on this case and this subject, I'd encourage anyone reading today's post to click on that link immediately above in this paragraph, and read my two previous posts on this subject. If the above link doesn't take you to the first of those two previous posts, you can simply go to the "Search" field on the right side of this page, at the bottom of the "Topics" directory, and enter the words "violent video games." The results page should show you both of my previous two posts on this case. Click on each and you’ll be taken to the full post for each.

People know how I feel about the moral degradation of this country being openly fed by a judiciary that is all-consumed with the right of "commercial free speech." This doctrine, extrapolated from the laudable original goals of the First Amendment, has been perverted to allow all sorts of depravity in this country. While some (primarily liberals and corporate media interests) will argue that this decision is technically accurate on a purely legal level, it is morally - dangerously - flawed. These depraved, and highly interactive and realistic video “games” are so barbaric and depraved that words fail an adequate description. If you care to know just what they are like, and what’s in them, I suggest you read both of my Part One and Part Two posts previously published on this blog.

Shockingly, one Justice (Antonin Scalia,) was reported to have partially justified his vote to strike down this law with the hollow observation that some fairy tales have violence within them, and since they’re not banned, why should violent videos? To say that I’m stunned that this kind of a vapid, shallow, response came from the mind of a Supreme Court justice, is like having a nationally-renowned heart surgeon not know how to remove a Band-Aid. “Shocking” is far too minimal to describe this intellectually vacant analogy. As an experienced Massachusetts criminal defense attorney in practice over twenty years, I can assure you of this.

Note to Justice Scalia and the other justices striking down this law: Hansel and Gretel, and their analogous progeny:
A) Were largely comforting stories, intended for extremely young children, and did not have as their central focus and purpose the depiction of sadism and barbarism that words cannot adequately describe;
B) Were written, not videos, which influence the developing teenage brain far more powerfully than anything written;
C) Were not graphically violent;
D) Did not encourage and require the interactive, sadistic participation by children in the most barbaric of violent acts; and
E) Did not reward children or other readers for interactively engaging in the most violent, barbaric acts imaginable.

• Shouts of glee from children were not shrieked when a police officer was cut to pieces.
• ‘High-fives’ weren’t flying as a young child was encouraged and rewarded for slitting the throat and decapitating a woman.
• “Points” weren’t awarded to a young child watching an animation of a young woman begging for her life, as he douses her with gasoline and sets her on fire.

Neurologically, without question, audiovisual interaction and “rewards” stimulate areas of the developing brain to a degree never previously imagined. Numerous independent medical studies have confirmed this fact. Legitimate debate on this point, has long since passed. And the animation in these videos is NOT your parents’ Warner Bros. or Hanna-Barbera type of “cartoon": The computer-generated imagery that is depicted (“CGI”) is so realistic that you would swear you are seeing an actual video of real people being tortured to death, in ways that shock the conscience of any sentient, decent human being. As in my previous posts on this subject, I will not give these twisted video game manufacturers free publicity by mentioning the names of some of these products here.

It is absolutely indefensible that the Supreme Court in the late 1960’s used sexual “obscenity” as the basis for allowing the sale of adult magazines like Playboy and Penthouse, yet now refused to expand the definition of “obscene” to include these perverse, twisted violent video games. (And that is all they would have constitutionally needed to do, to uphold the California statute.) Our country is not only a less dignified, less civil, less moral country as a result – it a far less safe one. Mark my words, as a Boston/Dedham Massachusetts criminal defense lawyer, I can assure you: Teenage and youthful participation in violent crimes such rape/sexual assault, Domestic Violence, kidnapping, and even murder, will all increase.

Regardless of your faith, pray for this country. Honestly.

It seems that accusations of Massachusetts rape & sexual abuse can even reach into police departments.

Recently, an officer in the Lowell Police Department was charged with raping two prostitutes, and soliciting sex from other prostitutes, while on duty as a police officer. According to the Middlesex County District Attorney’s Office, Aravanh Lakmany was indicted by a Middlesex County grand jury on Thursday, June 23 2011. The indictment alleges that Lakmany, working the overnight shift for as a Lowell police officer, solicited several prostitutes since early 2009. Prosecutors allege that Lakmany would order the women to get into the back seat of his cruiser, and sometimes his personal car, and would drive the women to a secluded area where he would engage in sex with them. The District Attorney has alleged that Lakmany traded sex for his promise not to arrest the women for prostitution. As a Boston/Dedham Massachusetts sex offenses lawyer, I can assure you that sex offenses can often be highly complicated cases. Many are not anywhere near as “clear-cut” as they might seem. This defendant, like all criminal defendants, should be presumed innocent until proven guilty.

Also, I should point out: This indictment should not taint the image of the average police officer. The vast majority of police officers whom I know are honest, hard-working people. But this indictment does make clear: Anyone can be accused of rape.

As anyone who has visited my Massachusetts OUI/DUI website pages knows, Massachusetts law currently requires Ignition Interlock Devices for anyone convicted of a 2nd or greater OUI/DUI offense in Massachusetts. Currently, 1st offenders are not required to obtain such a system.

Required by Melanie’s Law since 2006 for anyone convicted or pleading guilty to a second OUI offense or higher, Ignition Interlock Devices require a driver to blow into a dash-mounted device that analyzes the driver’s Blood Alcohol Content (BAC.) If the test register above a .02, the engine will not start. When ordered by a court for multiple OUI/DUI offenders, the defendant must pay for the device and its installation. The devices are only available from a list of state-approved vendors, and they are quite expensive. Further, the driver is required, every month, to download the data stored in the device’s hard drive, to the Massachusetts Registry of Motor Vehicles. The RMV will analyze the data, which will reflect all activity related to the operation of the unit, and critically, all BAC readings each time the operator attempted to start the car.

Recently, an effort has begun in the Massachusetts Legislature to amend the current law, to require the Ignition Interlock Device Program for first-time OUI/DUI convictions. State senator Robert Hedlund (R – Weymouth,) together with the support of Mothers Against Drunk Driving and 7 other state legislators, has sponsored the legislation. The measure, Senate Bill 1746, “An Act Relative to Ignition Interlock Devices,” is currently being debated before the Transportation Committee. The bill’s sponsors point out that presently, 27 states require ignition interlock for first time OUI/DUI offenders, and they argue that statistics have proven that these devices can reduce drunk driving recidivism by a figure as high as 64 percent.

The bill’s proponents further argue that since the ignition interlock program was first required for repeat OUI/DUI offenders in Massachusetts, only 2 of the over 533 persons who have completed the program have been rearrested for drunk driving. Senator Hedlund has stated that “Statistics have shown that about 1/3 of those drivers arrested on DUI/OUI charges will become convicted repeat offenders.” “ David DeIuliis, the interim state director for Massachusetts Mothers Against Drunk Drivers (MADD), argues that “Every repeat offender was a first-time offender once,” and that “If the objective is to reduce drunk driving and reduce repeat offenses, an easy way to do it is to take the first offense more seriously.”

When finished with its review of the bill, The Transportation Committee will take one of three possible actions: 1) Recommend the bill as favorable; 2) Report the bill as not favorable, or send to it to a “study committee” (a legislative graveyard.) As Dedham, Massachusetts OUI/DUI defense lawyer, I’ll keep my readers posted on what follows.