The Kickham Comment - Boston Criminal Attorney Blog
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.