Boston Criminal Attorney Blog

Here’s an interesting question someone put to me recently. It has to do with rape and sexual assault:

“Let’s assume that I decided to pretend I was gay to get in with the more trendy women who hate me for being a “heterosexual pig.” Assume I got such a woman back to my place (on the pretext that I was gay,) and she starts coming on to me, saying I should try it (sex with a woman,) as I might learn to like it. Now assume I said something like “OK; I suppose if we really must, I’ll try it.” Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?”

Well, well – Creativity never ceases, no? This man’s question is premised upon a legal concept known as “Fraud In the Inducement.” He’s borrowed this legal concept from contract law, and the theory has been used in legal practice areas as seemingly disparate as business litigation and family law/domestic relations law. This legal theory – essentially a defense – holds that if someone is enticed or induced to enter into a contract based upon fraudulent representations, then that contract is either void or voidable (“void” meaning “Void Ab Initio”, Latin for “Void from the beginning”; and “Voidable” meaning, cancellable at the election of the party claiming fraud.) In business litigation, for example, if one party to a contract has been induced to enter the contract due to material misrepresentations, the party seeking relief may be entitled to relief from the obligations imposed upon him in the putative contract.

In a family law or domestic relations situation, if one party to a marriage has been enticed to enter into the contract based upon fraudulent representations, the marriage may be deemed void. A classic law school example of this, is the “spouse” who, prior to entering into the marriage, represented that he or she wanted to have children, when in fact the person never intended to have children. After the marriage is consummated, he or she declares that children will never be produced from the marriage. Fraud of that nature can lead to a judicial declaration that the marriage was “Void Ab Initio.” As similar example of “Fraud In the Inducement” of a marriage, would involve a “spouse” who represented to his/her partner that he or she was the product of or a member of a prominent family (say a Rockefeller or similar,) when in fact they never were.

The gentleman who asked the above question, however, has confused this legal concept with another criminal law theory that is used in cases of consensual sexual relations that result in the transmission of sexually transmitted diseases, or STD’s. This is the type of situation that occurs when one person, who is aware that he or she carries an STD, engages in consensual sex with a partner without informing that person of the fact that he/she has an STD. If the unwitting partner contracts that disease, the deceiving, or “silent” partner (as it were,) can be both charged criminally with Assault and Battery, as well as sued civilly for damages that result from that STD infection.

The legal basis for both criminal penalties and civil liability in this instance, is premised upon the absence of “valid” consent. Even though, in the example of an innocent person contracting an STD, both parties seemed to “consent” to the sex, “valid” consent would be lacking, as the “consent” that was granted by the innocent party, was obtained through fraud. The “fraud” in this context is the failure to disclose that the non-innocent party carried a communicable disease (an STD.) The legal theory providing for both criminal penalties and civil liability in this example, is based upon battery, which is the unconsented-to physical contact with another person. While inoffensive contact such as bumping into someone in a public setting is deemed “implied consent” and thus not actionable on a criminal or civil basis, sexual contact does not fall in this category.

Therefore, the answer to the question posed at the top of this post, “Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?” is, as of current case law in Massachusetts, "No." However, I wouldn’t suggest that eligible singles – men or women - resort to this tactic. In the beginning, end and middle of everyday actions, there is something called self-respect, and behavior like this doesn't reflect it. Better to become a more honest person, hit the gym, or both.

The criminal defense bar in Massachusetts has for over a year paid close attention to defrocked Catholic priest Paul Shanley’s appeal to the Massachusetts Supreme Judicial Court (SJC), of his 2005 rape conviction. The SJC’s decision is now in, and it isn’t good for Shanley, or for many Massachusetts rape defense lawyers.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

However, under Massachusetts law, the “tolling period” – the date when the statute begins to run – is the date that the alleged victim first became aware of the alleged crime – not the date that the alleged crime was committed. When these types of statutes were first written - not that long ago – they revolved around logic: If someone were a victim of a serious crime, and chose for many years to never file charges against the alleged defendant – then it was legislatively “presumed” that something must “be missing” in the victim’s evidence or the victim’s story – and that in the interests of justice, the door to prosecution against the defendant should at some point in the future be closed. In my view as a Boston Massachusetts sex offense lawyer, that’s a fairly balanced approach. But science, together with sometimes questionable psychological theories, it seems, never ceases its advance.

“Repressed memory syndrome,” which was developed by prosecutors and psychiatrists, argues that if an alleged victim unconsciously repressed his or her memory of the alleged crime for ‘X’ number of years after the alleged crime, and under normal circumstances the defendant could not be prosecuted for that crime because the statue of limitations had run, the prosecution should still be allowed if the time between the alleged victim’s recovered memory and the time of his complaint, is not greater that the time recited by the statue of limitations. Here, the victim testified at Shanley’s 2005 trial that more than 20 years had passed before he remembered what had happened to him. Normally, this would have barred his complaint from being prosecuted, as this period exceeds the statute of limitations for this crime. But, he testified that his memory came back in 2002 after being exposed to widespread media coverage about Shanley and the church sex abuse scandal. And it was the admission of that testimony – and particularly the trial judge’s admission of psychological expert testimony on the theory of dissociative amnesia - which allowed the jury to convict Shanley.

I’ll discuss the precise legal objections advanced by Shanley’s appeal, and the SJC’s reasoning, in my next post.

My apologies for my absence here recently – I’ve been sidelined with a bad cold. Here’s an item that will probably be appreciated mostly by lawyers (vs. lay persons,) but on a legal level, the issue is significant. It’s a decision by the state Supreme Judicial Court (SJC) that more clearly defines the legal element of “attempt” within the criminal law context.

Before reviewing this case, let me say that almost anyone reading about this case – in particular of the SJC’s decision to overturn this conviction – is going to be disgusted over the facts within the case. Regarding the facts of this case, I’m equally disgusted. But when considering the ruling, it’s critical to bear in mind the legal elements of the court’s decision.

Back in 2004, the Worcester, Massachusetts Police Department was conducting an undercover sting operation to root out Massachusetts sex offenders – particularly child sex offenders. Posing as a prostitute, an undercover female police officer met with one especially perverted, twisted individual by the name of Kerry Van Bell. Van Bell met the “prostitute” in a convenience store parking lot, where the undercover officer offered to make a 4 year-old girl available to him for sex. The undercover officer informed Bell, however, that the child was not with her in her car, and that Bell would have to follow her in his car to drive to where the child was located. Bell, while voicing his displeasure that he child was not readily available to him then and there, agreed to follow the undercover officer in her car, and agreed to pay $200 for the child upon arriving at the “destination.”. Upon exiting the store parking lot, police cruisers in waiting swarmed in on Bell, arresting him and charging him with attempted rape of a child (M.G.L. c.265, Sec. 13B -13B-3, and solicitation of sex for a fee (M.G.L. c. 272, Sec. 2-8.)

At trial, Van Bell was convicted of both “attempted rape of a child” and solicitation of a prostitute. He appealed on several grounds, arguing that there was insufficient evidence to convict him on the attempted rape charge. This is where the legalese comes in. You see, while the police, the prosecutor, you, me, and even the judge knew this sickening pervert fully intended to rape a (unknown to him, fictitious) 4 year-old child, the legal issue on appeal was, “Did the defendant come close enough to the charged act (attempted rape,) to warrant a guilty finding on that charge”? The answer was no.

The reason? The legal definition of “attempt.” It’s not the same as a lay person understands it to be. It’s far more surgical and legalistic. You see, an “attempt”, in the eyes of the law, must go beyond mere agreement to commit an unlawful act; it must exceed “preparation” to commit an unlawful act, and progress or mature into “perpetration”. In this case, the SJC majority found that this defendant – while he fully intended to commit the act – hadn’t yet undertaken steps to legally “attempt” the rape. Specifically, this required an “overt act” under the relevant statute – and the court’s majority found that “overt act” to be lacking here. Hence, the court reversed the “attempted rape” charge – but they did find Bell guilty on the charge of solicitation of sex for a fee.

Sounds unfair, doesn’t it? I wouldn’t blame you for feeling this way. But these legal principles and maxims exist for sound reasons. Once they start to slide to accommodate individual prosecution objectives, no matter how laudable those objectives, and how horrible the crime, justice will suffer in the long term.

As a Boston sexual offenses lawyer, I’ve seen my share of detestable crimes. But I’ve also seen my share of cases where prosecution should not have been brought in the first place. Remember, if people want the law to stand up for them, they need to stand up for the rule of law.

Not that many people outside of the criminal defense profession or the criminal justice system are aware of this, but in Massachusetts, once a convicted sex offender’s prison sentence is finished, the story isn’t necessarily over. You see, once a convict’s criminal sentence for a Massachusetts sex offense has been completed, the state has the right to seek an (involuntary) civil commitment of that person, if in the Commonwealth’s opinion, that person continues to pose a threat to the public if he (or she) is released. This process is known as a “civil commitment petition,” and if the Commonwealth’s petition and argument is successful, the defendant is transferred out of the prison he has served his criminal sentence in, and held (against his will, obviously) under civil law in the state hospital for the sexually dangerous, which is Bridgewater State Hospital. There, he will be held and treated indefinitely, until when (or if) medical authorities determine that he no longer poses a threat to the public if released.

That scheme can make sense from both a correctional, as well as public safety, point of view. Notwithstanding the fact that I am a practicing Massachusetts criminal defense attorney, I can easily acknowledge that it makes no sense to allow a serial rapist or serial child abuser to be released after completing a criminal prison sentence, solely because “X” number of months or years has been served, if that convict remains just as dangerous at the completion of his criminal sentence, as he was the day he began it. The critical issue is, however, who should decide this question – a judge or a jury? Historically in Massachusetts, it is the defendant who has been allowed to make that choice whenever the Commonwealth filed such a petition – not the particular District Attorney’s office filing the petition. What’s the big deal with that, you ask? Well, most defense attorneys representing a convict at such a trial would choose to have the matter heard by a judge, not a jury, and a prosecutor has had no say in the matter. The reason that most defendants choose to have the matter tried before a judge, is that many defense attormeys believe that historically, judges are more likely to release a convict, than a jury. Judges typically decide this issue based upon very formal, and justifiably demanding, legal criteria before granting a prosecutor’s petition. The Commonwealth must meet specific legal criteria in demonstrating that the convict suffers from a “mental abnormality or defect,” therefore making him likely to re-offend. A good number of judges have historically denied those petitions, because judges interpret those petitions very strictly. The result: Massachusetts sexual offense convicts are released, and many re-offend. This was witnessed most recently in a widely-publicized sexual assault at Massachusetts General Hospital.

In that particular case, the District Attorney’s office that was involved, had petitioned a court to civilly commit the convict at the end of his sentence. At the defendant’s request, the matter was heard before a judge, and the judge denied the prosecutor’s request, finding that the Commonwealth did not meet its burden of proof, and therefore that the convict did not pose a continued threat to the public if released. As fate would have it, the convict did re-offend, committing a sexual assault in Massachusetts against a woman, seriously injuring her. Predictably, the media in Boston and elsewhere reported that a judge released this person, and a public uproar (justifiably) followed. Many average citizens believe that too many judges are too lenient in deciding these petitions, and several media observers have noted that these petitions would be better decided by a jury chosen from the community, rather than a judge.

As a result, Middlesex County District Attorney Gerry Leone has filed a bill with the Massachusetts legislature, which would allow either the defendant or the Commonwealth to demand a jury trial. The thinking behind this approach is that a jury would be more sensitive to the risk of a convicted sex offender re-offending, and hence more likely to grant the prosecutor’s petition. As a Boston sex offenses lawyer, I don’t necessarily object to the idea of allowing a jury to hear the evidence in such petitions, and to decide the matter based on that evidence. Despite the perception held by some people that juries will grant these petitions more frequently than judges, the statistical evidence doesn’t necessarily bear this out. If, as a Norfolk County criminal defense lawyer, I truly believe that a convict who has served his or her sentence does not suffer from a mental abnormality or defect making him or her likely to re-offend, I have little doubt that I can make that case just as convincingly to a jury as I can to a judge.

And equally importantly, the public’s confidence can be restored in the criminal court system. When terrible incidents like the recent one I discussed above occur, many in the public decry “liberal judges.” This is despite the fact that most all the judges I know are responsible and fair jurists. If more of these decisions are placed in the hands of juries, that apprehension can be removed.

Truly dangerous sex offenders should be confined after their criminal sentences, and the public should be protected. (I wouldn’t want my wife, myself or someone I care about to be made a victim, either.) But let’s conduct this review process in a manner that maximizes public confidence.

This case is an interesting example of the importance of prosecutors – and defense counsel - taking care to watch what they say in their closing arguments to a jury, and of how a case can go awry in the last minutes of trying it.

In Berkshire Superior Court last year, a jury handed down a guilty verdict in a rape, assault and battery, and kidnapping case. Regrettably, rape cases are tried frequently in Massachusetts, and this case didn’t seem like any major exception. Except that in this case, the prosecutor went a little too far in his closing arguments. Non-lawyers usually don’t know this, but attorneys in criminal (and civil, for that matter) cases cannot just say’ anything they want’ to a jury, in their opening and closing arguments. Rather, opening and closing arguments must be limited to the evidence and the facts, and avoid inferential or suggestive comments to the jury. (Forget what you usually see on TV.) Sometimes, that line can be a hard one for a trial judge to find, but this case serves to better illustrate where that line is, in criminal cases.

In a ruling issued by the Massachusetts Appeals Court on September 1, the court vacated (meaning, disallowed) the rape ,assault and battery, and kidnapping convictions against one David E. Garcia, who was convicted in 2008 for the May 2006 rape, kidnapping, and assault and battery of his girlfriend, who at the time was 22. Because of a lengthy criminal history, Garcia was sentenced to 10 to 12 years in state prison. That’s one long stretch in a pretty unpleasant place. In trial testimony, the woman told the court that Garcia raped her after an argument over his allegedly cheating on her with another woman. The victim testified that Garcia would not let her leave his home, nor would he let her use the phone, at varying times hitting her and punching her during the ordeal. According to testimony, Garcia did not bring her home until the next day. (In case you’re wondering, the defendant’s act of not allowing the victim to leave the house is what constituted the kidnapping charge and conviction. Again, forget what you think you know about “kidnapping” from TV shows and movies, where only strangers "kidnap" someone.) Garcia acknowledged all of the above, but claimed that the sex was consensual.

The Appeals Court’s ruling concluded that the trial jury was tainted by the prosecutor’s call in his closing arguments to “vindicate’’ the victim, among other comments he also made to the jury. According to the Appeals Court’s ruling, at one point in the case, the prosecutor indicated the woman had been “revictimized’’ by having to recount her story to police and in court, saying “Talk about revictimization - how many times did she have to tell that story?’’ The prosecutor further told the jury that “your guilty verdicts today will acknowledge and affirm that what [the victim] said, what she did, how she acted, how she reacted, will be accepted and understood.’’

Citing case law in this area, the Appeals Court ruled “The prosecutor’s closing argument, ‘was the equivalent of an exhortation that the jury had a duty to the victims to render verdicts of guilty.’ ’’ Additionally, the court ruled that the trial judge did not take strong enough action, after those comments were objected to by defense counsel, to warn jurors that they must refrain from allowing emotions or sympathy enter into their deliberations. That will likely put a lot of trial judges on alert to pay careful attention to attorneys’ oral arguments to a jury.

A few prosecutors I’ve spoken with feel that this ruling too tightly constrains what they can and can’t say to a jury. As a Massachusetts criminal defense lawyer, I can understand that frustration, but the more both sides – prosecution and defense – stick to the facts and the evidence in their arguments to a jury, the more likely it is that a just verdict will result.

In another example of how professional sports players are anything but angels, or icons that should be praised, a former New England Patriots football player received a two year jail sentence earlier this week in Norfolk Superior Court in Dedham, for the statutory rape of a 15 year-old girl who attended the high school where he was a football coach. Daniel Villa was sentenced earlier this week after he decided to plead guilty to charges of enticing a minor and statutory rape of a 15 year-old student at Walpole High School, where he worked as a football coach. In addition to the two year jail sentence (which Villa will serve in a County House of Correction, not state prison,) he was also sentenced to seven years probation, banned from working with children less than 16 years of age, and ordered to register as a sex offender with the Massachusetts Sex Offender Registry Board (SORB.)

In pleading guilty to the charges and avoiding a trial, Villa told the judge he was “Thirsty for a clear conscience.” While this may be true, and while Villa’s lawyer also said that his client wished to spare the victim and her family the additional pain that a trial would likely bring, it also seems that Villa’s lawyer did not feel that the former NFL player could prevail at trial. One of those reasons: Prosecutors say Villa sent the girl thousands of text messages, and the sexual acts cited, were alleged to have taken place repeatedly.

Statutory rape differs substantially from a “normal” rape or sexual assault charge. A charge of statutory rape does not necessarily allege that any violence or coercion took place, only that the victim was under the age of 16. The victim may have been an entirely willing participant in the sexual acts engaged in, and may even have initiated the alleged sexual acts, but Massachusetts law presumes that a person under the age of 16 does not possess the “capacity” to provide consent to sex. “Capacity” refers to the intellectual, emotional, mental and developmental skills necessary, to provide a knowing “consent” to such acts. Some people believe this legal theory is invalid and based on puritanical thinking that gave rise to many laws in Massachusetts that originated hundreds of years ago, but it is still the law and hence must be observed.

Deciding whether to advise a client to plead guilty to any charge, is a difficult one, but one that is always fact-dependent and circumstance-dependent. Given the amount of evidence that the Commonwealth had against Villa, it seems this plea was the best course of action to take. If Villa had elected to go to trial and been found guilty of the charges, he could have received a much lengthier prison sentence. As a Massachusetts criminal defense lawyer, I can tell you that while these decisions take a lot of intellectual and professional skill, they often come down to the skills of a poker player. Beyond knowing the law and being a skilled trial advocate, a truly good criminal defense lawyer needs to “Know when to hold ‘em and know when to fold ‘em.”

In my previous post on this topic, I noted that the Massachusetts Appeals Court has recently handed down a decision that changes the way the state Sex Offender Registration Board (SORB,) determines whether or not someone previously convicted of a sex offense, must continue to register as a sex offender indefinitely in Massachusetts.

Now, to the legal reasons why: The Appeals Court ruled the way it did here, based largely upon two legal concepts: “Retroactivity,” and “Due Process.” Of these two concepts, most people are more familiar with due process. This legal maxim, embedded in the United States Constitution and the Massachusetts Constitution, requires (very basically and broadly) that anyone subjected to a criminal proceeding be given notice and an opportunity to be heard as to the charges or proceedings against them. “Retroactivity” refers to the process of punishing someone in the present, based upon an unsupported inference or assumption that the person still poses a threat that the legal proceeding seeks to protect against. Retroactivity played a key role in the Appeals Court’s decision here, as the appellant’s offense, which SORB argued made him subject to its continuing registration requirement, was a single offense that took place almost 25 years ago. More important than that, there was compelling evidence that the incident was fueled by a drinking problem that has not existed for many years since the time of the offense, and there was strong evidence that appellant had reformed his life in many respects since that time.

In this case, the hearing officer at SORB found that Doe presented a "low" risk to reoffend and a "low" degree of danger to the public. Resultantly, she classified him as a level one sex offender (the least serious level) but notwithstanding, the finding subjected him to the continuing registration requirement as a sex offender. The court noted that in so finding, it could be argued that the hearing examiner based her reasoning on the fact that Doe had not shown that he presented “no” risk of re-offense or threat to the community. But the court found that this “inferential leap,” was not sustainable here where: a) such a finding was legally foreclosed by the sex offender registration statute; b) the record did not show that the hearing examiner considered the issue of his present risk level; and c) the hearing examiner, at the time she made her ruling, did not have the benefit of a prior Massachusetts Supreme Judicial Court (SJC) ruling preventing such inferential conclusions.

In view of these facts, the Court remanded the hearing back to SORB, ordering that the SORB hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently poses a present risk of re-offense or present danger to the public. In its ruling, the Court noted that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are implicated where registration is required solely based on the characteristics of an offense committed more than two decades earlier. In order to avoid retroactivity concerns, the court ruled that sex offender registration can be required only based on an assessment "of the person's current level of dangerousness and risk of reoffense" (emphasis added). Thus in this case, if upon reconsideration the hearing examiner again concludes that SORB has met its burden of showing that Doe presents a "low" risk of re-offense or a "low" risk of danger to the public such that he must register, the facts upon which that assessment is based must be specifically found, particularly identifying any facts that postdate the appellant’s offense, as well as the evaluative process used to balance the characteristics of Doe's offense against Doe's life for the past 25 years.

In addition, the court ruled that the explanation of that evaluative process “Should also include the basis upon which the hearing examiner concludes (if she does so) that any predictive value can be placed on Doe's 25-year-old offense, and to the extent that the offense has any predictive value, how that value is to be balanced and weighed against the totality of the other circumstances. These include, for example, the role alcohol may have played in the offense (and Doe's subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe's 25-year-old crime.”

The court emphasized that SORB's burden is to show that Doe presents a "cognizable risk of reoffense," not merely a hypothetical or speculative potential risk. The court’s ruling made clear that the term "low" must be given a reasonable interpretation; it should not be taken to mean "anything more than no."

Hence, while someone who is convicted or otherwise pleads guilty to a Massachusetts sex offense will be required to register as a sex offender with SORB, hearing officers at SORB will in the future be required to consider the petitioner’s “whole life” story, and specifically consider the recent and current state of that person’s broader life history, before requiring that he or she continue to register as a sex offender in Massachusetts.

Sex offenses in Massachusetts, or anywhere, elicit a strong reaction on the part of the public and the media – and understandably so. This is especially true when the offenses involve children or the vulnerable – again, with good reason. Wisely, we in Massachusetts (and other states also) have enacted laws requiring persons convicted of sex offenses to publicly register as sex offenders with a special agency that monitors such convicts, following their conviction and/or release from prison. But how far should the law go when dealing with someone who has been convicted of a single sex offense, which involved substance abuse, many years ago,? Should that person be required to register publicly as a sex offender indefinitely, for so long as he or she remains a resident of Massachusetts?

The Massachusetts Appeals Court handed down an interesting decision this past week, dealing with the requirement that sex offenders in Massachusetts must register potentially for life as such, with the state Sex Offender Registration Board (SORB.) SORB is the state agency that is charged with registering and monitoring persons either convicted of, or who have accepted guilty pleas on, sexual offenses. To date, if a defendant in a criminal prosecution either pled guilty to or was convicted of a sex crime, he or she would be required to register with SORB indefinitely – no matter what circumstances surrounded the original crime, or how old the offense was. The Massachusetts Appeals Court has now modified that requirement.

In John DOE, Sex Offender Registry Board No. 24341 vs. SEX OFFENDER REGISTRY BOARD, the Appeals Court heard the case of “Doe” (a pseudonym,) who claimed that he was wrongly being required to continue to register with SORB as a sex offender, based upon a single offense 25 years ago, which he claimed was fueled by a drinking problem that he no longer has. The appellant was convicted in 1984 of assault with intent to rape, after leaving a Quincy bar. Since his conviction 25 years ago, “Doe” had enrolled in Alcoholics Anonymous (AA,) given up drinking, led a responsible life and had experienced no trouble with law enforcement or been involved in criminal offenses of any kind. A hearing officer at SORB concluded that though Doe posed a “low” risk, he still posed a risk, that the details of his personal rehabilitation were not material, and that he therefore was still required to register as a Level One sex offender (the least serious level classification within SORB.) Doe appealed to a Superior Court judge, who affirmed SORB’s findings. Doe’s attorney then brought the matter to the Appeals Court for review.

The Appeals Court ordered SORB to reconsider their decision, taking into account the man’s broader life history since his arrest, before determining whether he is still a risk and requiring him to continue to register as a sex offender. I’ll explain the legal reasoning and the details of why they did this, in my next post.

According to internet safety experts and many public policy officials, teens increasingly face the possibility of becoming registered sex offenders for sending sexually explicit images of themselves (or others) over the Internet and their cell phones. More and more schools and parents have discovered that their teenage sons and daughters have emailed sexually suggestive photos of themselves to other classmates, usually through their cell phone cameras. Remember the Polaroid Land Camera? And you thought that was high-tech …

To combat what many perceive to be a growing problem here, some prosecutors across the country have suggested that emailing such images (by underage teens of themselves or others,) could constitute dissemination of illegal “kiddie porn.” While dissemination of nude and semi-nude images of persons over 18 is legal, such images of anyone under 18 are considered illegal pornography in almost all states. Dissemination of these images over the internet, via ‘sexting,’ might constitute a federal crime. Most sexting involves girls who intend to send the photo to a boyfriend or someone they are interested in. It used to be that if a high school kid were interested in another student, she or he would try to get into a study group with that student, or strike up a conversation. Not so any more. If these pictures stayed with the intended recipient and strayed no further, perhaps there wouldn’t result any real problems.

But of course, that’s not what happens. The “innocent” photo soon enough is forwarded to friends, and friend of friends, and faster that you can say “swine flu,” it spreads like a virus, and the whole school (if not half the town) has seen the images. Clearly, this is a bad idea and a foolish practice. Before she or he knows it, aside from being the talk of the school, the person who took the photo of him or herself, is the target of cyber-bullying, with threats made by enemies or extortionists to post the images on YouTube and the internet. A California-based nonprofit agency, i-SAFE, which provides an online safety curriculum for students in Grades K-12, recently coordinated “Cyber Safety Week” across various schools in Massachusetts, to warn of these dangers, and this is a good first response to this problem. The Verizon Foundation donated $100,000 for the training sessions. At the Greater New Bedford Vocational School where one such program was held recently, Bristol County Sheriff Thomas M. Hodgson commented, “This is a whole new crime prevention program for a threat facing our children and our parents.” Hodgson’s department has been sponsoring an Internet safety campaign for the last two years.

Clearly, ‘sexting’ is a bad idea and a foolish practice, and anyone familiar with the speed and ubiquity of the internet ought to know that – especially a teenager, as (believe it or not,) they tend to be far more proficient in internet use and applications than most adults. But should ‘sexting’ be a crime? Most anyone would agree that cyber-bullying should be a crime. But ‘sexting’? Should that be considered “pornography” in the commercial sense? (This is how nude and semi-nude images of children under 18 are restricted in magazines and publications.) Should teens found to have ‘sexted’ be required to register as “sex offenders”?

As a Boston sex offenses defense lawyer, I think that’s an extreme response. Let me know how you feel about this. Fill out a Contact Form on any page here, and send me your comments.

The Supreme Judicial Court (SJC) handed down a very interesting ruling recently, that will widely impact how suspects who are accused of sex crimes can be monitored when they are on release pending trial. The court recently ruled that suspected sex offenders cannot be ordered by a judge to wear a GPS tracking bracelet while they are awaiting trial. The ruling is important because previously, the Commonwealth could file and argue a motion before a judge at a defendant's arraignbment, requesting that a suspect released before trial be ordered to wear a GPS tracking bracelet, so that police and authorities could monitor his/her whereabouts prior to trial. A law passed in 2006 specifically allowed this motion, and it has been used in many pre-trial cases involving sex crimes since then. However, the SJC recently ruled that the law was intended by the Massachusetts Legislature to apply only to convicts who have been placed on probation after being convicted of certain sex crimes, not to those who are merely suspects. The GPS law was challenged by a man who had been placed on pretrial probation by a New Bedford District Court judge after he was charged with indecent assault and battery on a child under 14 as well as disseminating obscene matter to a minor.

A lot of people, especially advocates for victims of sex crimes, are understandably upset by this ruling. It is not uncommon for someone accused of a sex crime to be released on pre-trial probation, and without any means to monitor such a suspect, he or she is effectively released back into the community, where they may possibly re-offend. On the other hand, a person can be innocent of a crime they are accused of. Not everyone charged with a crime is guilty of that crime; people are often accused unjustly. In such a situation, it can be humiliating and onerous to be forced to wear a GPS tracking bracelet, 24/7. It is effectively a “Scarlet Letter”. This can be a tough issue. I’d like to know what my readers think about this issue. Email me at: bill@kickhamlegal.com, and let me know your thoughts.

Occasionally, I’m asked by other criminal defense lawyers if I have any hesitation writing about or publicly approving of “prosecution wins” – cases where the defendant was found guilty. As a Massachusetts criminal defense attormey, the answer is no, I don’t: I don’t at all believe that truly guilty persons, or persons who are proven to be an obvious threat to public safety, should not be incarcerated. I don’t want my safety, my wife’s safety, or the safety of those whom I care about, to be threatened by a clearly dangerous person who should inarguably be off the streets. What I do want, and what I firmly believe in, is due process and the right to be defended zealously in court, prior to any determination of guilt. But if someone has been proven to be an obvious and serious threat to public safety, I have no problem congratulating the prosecution on a conviction, and for putting a dangerous person behind bars.

So it’s in that vein, that I offer my recognition to the Bristol County District Attorney’s office, in the conviction earlier this week of one Corey Deen Saunders. Saunders, an especially twisted human being, is a previously convicted sex offender who raped a 6 year old boy in the New Bedford Free Public Library last year. Yes, that’s right – in a public library, just feet away from his mother, who was using a library computer. Saunders was sentenced yesterday to life in prison by a Massachusetts Superior Court judge who ruled that only a lengthy jail sentence could prevent Saunders from harming more children.

In his decision, Superior Court Judge Robert J. Kane wrote, "We now know that Saunders is not amenable to rehabilitation," adding that "the history of Saunders' constant abuse of children . . . and his insincerity silence any claims that Saunders will effectively control his sexual urges." He had been on probation for a previous conviction of trying to rape a 7-year-old, and was supposed to “stay away” from children. (How, exactly, a condition like that is supposed to be effectively policed, is still beyond me and many other legal experts. Electronic monitoring bracelets can presently only monitor where someone is, not what someone’s doing.) Saunders had been released from prison earlier after he served a four-year prison term, in spite of prosecutors' requests to keep him jailed, and in spite of their arguments that he was still a danger to children. He is presently serving a five-year prison sentence for violating probation for that earlier conviction. When that sentence is completed, Saunders will remain an esteemed guest of the Massachusetts state prison system for at least fifteen years, when he will be eligible for parole. The reason he will be eligible for parole: While he was sentenced to a life term, only certain crimes, such a Murder In the First Degree, exclude any possibility of parole.

Saunders had admitted to court psychologists a history of molesting boys while staying in foster homes and state programs. He had a disturbed childhood, psychologists said in the court records, and a low intelligence level. The mother of the 6-year-old boy who was victimized by Saunders in this case submitted a letter to the court yesterday saying, "Please understand that this man tried to take my son's innocence away," she said. "He is a danger to children in society," she said. "Not another child nor family should go through the pain that we have endured."

Amen to that.

In a major step forward in progress toward treating the opposite genders truly equally, the Massachusetts Supreme Judicial Court recently handed down a sharply divided ruling in a case involving underage sex and statutory rape.

The case involved consensual sex between a 14 year old high school boy and three underage girls, two of whom were 12 years old and the other 11. Various sex acts were alleged to have taken place between the boy and each of the girls, between August and October of 2007. The police investigation revealed that no force was involved in any of the encounters, and that the alleged sex acts between the boy and all three girls was voluntary and consensual on the part of all four youths. However, Plymouth County District Attorney Timothy J. Cruz chose to prosecute only the boy with statutory rape, not any of the girls. Under Massachusetts law, it is deemed a crime for anyone of either gender under the age of 16 to have sex.

Notwithstanding the wording of any statutes concerning gender, statutory rape laws have almost always been enforced against boys under the age of 16, not girls. Statutory rape laws are very old, and had their origin in the antiquated legal concept that a daughter was the property of her father.

After his lawyer tried unsuccessfully to have the girls also charged, the defense sought statistics from prosecutors to support the claim that the boy was selectively prosecuted because of his gender. The District Attorney’s office refused, the boy’s attorney appealed to the SJC for direct appellate review, and the state’s highest court agreed to hear the case. In his appeal, the boy argued that the District Attorney’s office that prosecuted him for statutory rape, and not the girls, did so selectively, and as a result discriminated against him illegally. The court ruled that such selective prosecution, based on gender discrimination, was indeed possible in this case, and ordered that the Plymouth County District Attorney’s office turn over statistics revealing how many cases of statutory rape it has prosecuted in cases of consensual underage sex, and how many of those cases involved prosecution of just the male participant(s), and not female participant(s).

This is serious business. This boy is charged with nine criminal charges, three of which are for statutory rape, and the remaining for other sex acts not involving sexual intercourse. If he is convicted of any of these charges, he may have to register as a sex offender with the Massachusetts Sex Offender Registry Board. In my professional opinion as a Massachusetts criminal defense attorney, this ruling is long overdue, and will give similar District Attorney’s offices in Massachusetts justifiable pause before charging only boys in similar cases, when it is clear that the alleged sex was consensual on the part of both participants. To charge and prosecute only boys in such cases is patently unjust, inequitable, and discriminatory. These ancient and outdated laws are based on the groundless notion that girls under the age of 16 are not capable sexual actors the way that boys are perceived to be. This is 2009. Laws involving statutory rape should either be applied equally to both genders, or taken off the books and replaced with what are known in lay terms as “Romeo and Juliet Laws”. Such laws, which exist in 38 other states, treat consensual sex among teenagers far less harshly than in Massachusetts. Massachusetts legislators should wake up to the realities that a great many teenagers under the age of 16 always have engaged in voluntary, consensual sex, and – like it or not – always will. To treat these events as major sex felonies, a conviction of which could ruin a young person’s life, is patently ridiculous, in my view.

Memo to the Massachusetts Legislature: Reality called. Wake up and update these outdated laws.

In my previous post on this subject, I reviewed the case of a man who had been convicted of eleven (11) prior offenses of exposing himself to women and girls. Despite this history, a Massachusetts Superior Court judge ruled that, following his release from prison after serving a sentence for his most recent of those convictions, the state could not “civilly commit” the defendant, because his prior offenses did not involve physical contact with any victims. A “civil commitment” is distinct from a criminal conviction. A civil commitment involves a situation where the state petitions a court under a specific state statute that allows for the state to incarcerate someone against his or her will, because they suffer from some enumerated form of mental disability or defect.

However, the Superior Court judge who refused to civilly commit this defendant, based his reasoning on the fact that the individual never actually touched or inflicted physical harm on any of his victims, but was ‘only’ an exhibitionist. Upon review, the Massachusetts Appeals Court disagreed, ruling for the first time that such offenses, which are known legally as “noncontact sexual offenses,” can be used as the basis for civilly committing someone against their will. In arguing for this ruling, Plymouth County District Attorney Timothy J. Cruz spoke to the legislative intent behind the creation of this statute, stating, “…The legislature had already decided (when it enacted this law) that a conviction for open and gross lewdness (should be) an appropriate basis, along with the other requirements in the statute, to find that someone was a sexually dangerous person.” In agreeing with Cruz’ position, judge R. Marc Kantrowitz of the Appeals Court ruled that the Superior Court had erred, and that the legislature fully intended to include noncontact offenses such as Open and Gross Lewdness, as subject to the statute. What this now means is that a conviction for Open and Gross Lewdness (I.e., exposing oneself to another in public,) can later be used as the basis to civilly commit a defendant after he or she has either been convicted and/or served any criminal penalty. (Note: There must first be a conviction on this charge, not merely an arrest or criminal charge.)

At the Superior Court trial on the issue of civilly committing this individual, it was acknowledged by both the prosecution and the defense that no physical contact occurred between the defendant and his victims. Hence, there were two legal points focused on at both the Superior Court trial, and later the Appeals Court: 1) The definition of “harm” to a victim of Open and Gross Lewdness; and 2) Did the legislature intend to include such noncontact offenses in enacting this statute? Commenting on the issue of harm, Cruz offered that “The notion that a man who publicly exposes himself to a young girl or woman, or who publicly masturbates in their presence, does not cause them harm is ridiculous.” On the issue of legislative intent, defense attorney William Korman commented, “The Appeals Court has now said essentially that any exhibitionist who’s likely to do it again – and by the way, they’re all likely to do it again - is now per se sexually dangerous.” (E.g., without any argument or hearing on that issue.) But the majority of the Appeals Court disagreed, and until the Supreme Judicial Court rules otherwise, noncontact sexual offenses can now be used by the state to incarcerate someone, after they have been convicted of that offense, whether or not they have already served a jail or prison term.

It’s an interesting legal point: Should someone who has never physically touched or harmed anyone, be subjected to incarceration by virtue of the fact that he or she has been convicted of “Open and Gross Lewdness,” in and of itself? Before most readers are prone to shout “Yes!:, consider this: Someone who is caught urinating in public, if their genitals were exposed to someone else and the person witnessing the act felt victimized, could easily be charged with “Open and Gross Lewdness.” (How many times has this act been witnessed after a sporting event, not the least of which is the Boston Marathon?) Under this Appeals Court ruling, it would initially appear that, if convicted of such a charge in such a scenario, even if such a person didn’t serve any jail time, he could theoretically be civilly committed if a prosecutor wanted to petition for such a commitment.

Everyone can agree that persons who have been convicted of being sexually dangerous should be held in custody. I certainly agree with that proposition. But I think the better course of action here, would have been for the Appeals Court to ask the Legislature to revisit this statute, and clarify its intent. If the legislature clarified the statute by amendment, thereby making clear they meant to include such noncontact offenses, then so be it. But on legal issues like this, it’s always better to be safe, than sorry.

A very interesting case was recently decided by the Massachusetts Appeals Court, on the subject of “sexually dangerous persons.” The decision provided a clearer (and much needed) definition of just what constitutes a “sexually dangerous person,” and the state’s ability to incarcerate such individuals when they have not been found guilty of a crime involving any physical contact with a victim.

The Appeals Court decision, Commonwealth vs. Grant, rejected a Superior Court judge’s earlier decision that a sexual offense which did not result in physical contact or physical harm to a victim, did not qualify as an offense that could subject the offender to being civilly committed as a “sexually dangerous person.” The state statute that governs civil commitment of persons suspected of being sexually dangerous is Massachusetts General Laws C. 123, Section A (“M.G.L. C. 123A”.) That statute allows the commonwealth to keep an individual incarcerated after he or she has been adjudicated guilty of a sexual offense, and/or served a criminal sentence, if such person “suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or … whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.”

In the instant case, the defendant, one Darren Grant, was about to be released on an earlier conviction for an offense known legally as “Open and Gross Lewdness.” This generally refers to sexually exhibitionism, or exposing oneself in public, and indeed, this particular defendant had been previously convicted of just that offense – on 11 separate occasions. A serial offender, Grant was about to be released after serving jail term for his most recent conviction, when the commonwealth, through the office of Plymouth County District Attorney Timothy Cruz, petitioned that Grant be held in incarceration under the civil commitment statute, M.G.L. c. 123A, after he completed his criminal sentence. A Superior Court judge, following a two-day trial on the motion, denied the commonwealth’s request, ruling that Grant’s prior convictions did not involve “physical contact or physical harm” to others, that he was not likely to cause physical harm to others, and that therefore, he could not be civilly committed after his prison term under M.G.L 123A.

The Commonwealth, through Plymouth County District Attorney Timothy J. Cruz, appealed that decision to the state Appeals Court. I’ll explain the important criminal law ruling that followed, and the even more impact it has on the general public in Massachusetts, in my next post.

Sorry I haven’t posted anything in several days. I’ve been down with a bit of a summer flu, but hope you’ve been visiting, nonetheless.

A major legislative effort has come to a head up on Beacon Hill, which would reform the current child rape statute by increasing the mandatory minimum sentence for some sex offenses against children, and it is heading to Gov. Deval Patrick's desk. Some people are happy about this development, and some not so happy. Most people would think that everyone would support tougher laws against child sex offenders, wouldn’t they? So why wouldn’t someone be in favor of this? Well, as with most answers, the devil is always in the details, and if you look closely, you might see some cause for concern on the issue of mandatory minimum sentences (which I’ve blogged about previously).

The current effort began to gain traction in June, when the Massachusetts House passed legislation modeled after Florida’s “Jessica’s Law.” That law in Florida provides for a mandatory minimum 25-year sentence for child rape in that state, and many advocates of tougher child rape laws here wanted just such mandatory minimum sentences. And predictably, it has been that issue of mandatory minimum sentences that has caused the most debate in this effort.

Child protection advocates and those pushing for stronger, tougher child rape laws argue strongly for the mandatory minimum sentences, in which a judge, following a guilty finding on certain charges, has no discretion in sentencing: He or she must impose the mandatory minimum sentence, in state prison. (It is the state prisons in Massachusetts, such as Walpole or Cedar Junction State Prison, which house some of the worst, most violent offenders in Massachusetts.) If at this point in your reading this post, you’re strongly in favor of this change and wondering why anyone in his right mind would oppose this measure, read on: Many members of the criminal defense bar in Massachusetts, point out that mandatory minimum sentences pose the potential for even greater injustices. As an example, many criminal defense attorneys cite the possibility of what could happen under this bill to a 17 year-old high school student who has sex with his 15 year-old girlfriend. Were that to happen to your child, would you want your son or daughter to face a mandatory state prison sentence, with no sentencing discretion on the part of the judge? The potential problems now become clearer, don’t they?

On Tuesday July 15, the state Senate approved the proposed law, and it’s now on its way to Governor Patrick’s desk. The final version would create a new mandatory-minimum sentence of 20 years in prison for repeat offenders who are convicted of raping a child with force. Sentences would also be increased for the rape of a child involving a weapon and for aggravated indecent assault and battery of a child. The proposed law would also expand the definition of aggravated rape to include providing drugs or alcohol or a person misusing a position of trust, such as a teacher, a coach or a member of the clergy.

The measure has the backing of Attorney General Martha Coakley and Cape and Islands District Attorney Michael O'Keefe, the president of the Massachusetts District Attorneys Association. Senate Republicans also supported the final version of the legislation, even though they ideally wanted mandatory-minimum sentences modeled on Jessica's Law, which imposes a 25-year sentence for child rape in the state of Florida. They had to drop their demands on that provision.

This is an emotional issue – and understandably so. Child sex abuse is an extremely serious social and legal problem. It’s hard to talk calmly and reasonably about differing positions on this difficult issue without charged feelings erupting. But deal with this we must, and in the most responsible, balanced way we can.

Everyone wants child rapists and sex offenders, especially repeat sex offenders, to be dealt with swiftly and severely. As a Massachusetts sex offense attorney, I believe the best way to achieve this goal, is to do it in a manner that doesn’t catch otherwise “innocent” people in its wake (think of the high school lovers example,) and that assures that less-serious offenders (non-violent, non-repeat offenders) are rehabilitated, rather than mandatorily incarcerated for minimum state prison sentences.

Paul Shanley, a former catholic priest with the Archdiocese of Boston who was convicted in 2005 of the repeated rape of an altar boy in the 1980’s, has filed a Motion for a New Trial, challenging the validity of the evidence used to convict him in 2005, reports the Boston Globe in a story published today. Shanley is now serving a 12 to 15 year sentence for that conviction. At his trial in 2005, Shanley was convicted largely on the strength of the victim’s testimony, which was based on memories that the victim testified were previously suppressed, but involuntarily recovered when Shanley’s arrest on charges of previously abusing other altar boys was widely publicized in the media. At that point, the victim came forward to police, claiming memories of his own abuse at Shanley’s hands came rushing back to him.

Shanley, 77, now claims in his motion for a new trial that this testimony by the victim was unreliable, and should not have been admitted into evidence against him. His motion claims that his prior lawyer should have presented evidence that the theory of repressed memories is not unanimously accepted in the scientific community, but rather is challenged by some medical professionals. The District Attorney’s office that convicted Shanley says his motion is baseless, and that the concept of suppressed memories has achieved more than sufficient scientific and legal credibility.

Hence, the question now is, should Shanley be granted a new trial? I think not. It’s important to remember, Shanley’s trial was a criminal trial – not a civil one where anyone stood to gain any money or financial damages. There exists no credible reason why someone such as the victim in this case would place himself front and center in such a case, and put himself through the ordeal of testifying publicly at trial about extremely traumatic events, unless he was telling the truth. This victim stood little to gain in this trial by fabricating his testimony. Further, Shanley was initially arrested because several other men, now in their 20’s and 30’s, came forward after the clergy sexual abuse scandal first broke in Boston, to report that they, too, were abused by Shanley. It was only due to evidentiary technicalities relating to the statute of limitations that prevented charges being brought against Shanley based those other allegations. Shanley was known far and wide as a “street priest” in the 1970’s and 80’s, “ministering” to young boys and homosexuals. Far from “ministering”, it is now known he used his authority as a priest to prey on these boys and young gay men, many of whom felt ostracized by their friends and family to their homosexuality. As I said, several other men have alleged he abused them also.

To grant this person a new trial based on this particular motion is disingenuous, and lacks legal merit. Shanley’s motion should be denied forthwith, and he should remain exactly where he is.