Massachusetts Sex Offenders Who Indecently Expose (“Flash”) Can Now Be Held After Prison Sentence Is Completed

For a long time, Massachusetts sex offenses were – very generally speaking – broken down into “contact offenses,” where the defendant made physical contact with the victim, and “noncontact offenses,” where the defendant engaged in acts that are generally known as indecent exposure, or to use the lay term, “flashing.” Legally, such noncontact sex offenses constitute what in Massachusetts is called the crime of “Open and Gross Lewdness.” When a defendant has a demonstrated history of repeated sexual assaults against a victim or victims – where physical contact is made with the victim, if found guilty the defendant can not only be incarcerated under a criminal sentence. There’s potentially more to follow.

In fact, after the defendant’s criminal imprisonment is finished, the state can then commence civil commitment proceedings to have the defendant declared what is called a “Sexually Dangerous Person.” If this petition is granted, the effect is enormous, because he or she can then be committed civilly to incarceration at the Bridgewater State Hospital. Again, such a commitment does not constitute a second criminal conviction or a second criminal sentence, but a civil proceeding. This is a powerful, and occasionally necessary tool for authorities, when the behavioral evidence of the defendant’s history indicates that he or she is a serial offender, and highly likely to pose a physical danger to the public when released at the conclusion of a criminal prison sentence.

However, that mechanism for seeking a declaration that someone is a “Sexually Dangerous Person,” and thus keeping him or her incarcerated, has always been applied only to Massachusetts sex offenders who have committed contact sex offenses. These offenses include Massachusetts rape charges, Massachusetts Indecent Assault & Battery on a Person Under Age 14 charges, Massachusetts statutory rape charges, Massachusetts Indecent Assault & Battery on a Person Over Age 14 charges, and Massachusetts Assault with Intent to Commit Rape charges. This is just a partial list of Massachusetts sex crimes that can trigger a Sexually Dangerous Person commitment.

All this changed just yesterday, when the Massachusetts Supreme Judicial Court (SJC) issued a ruling that defendants convicted of noncontact sex offenses can be subject to SDP civil commitment proceedings. This means that repeat offenders who have been convicted of Massachusetts Indecent Exposure charges, or Massachusetts Open and Gross Lewdness charges, can not only be sentence to a criminal prison term, but can also be held behind bars after that prison term is finished. This ruling applies, essentially to serial “flashers,” and people who otherwise expose themselves or masturbate in front of their victims – but never physically threaten them with any form of contact, or “battery.”

As a Wrentham, Massachusetts sex offense attorney, I find this ruling overreaching and legally unjustified. I will grant readily that the Sexually Dangerous Person statute is necessary. As a Massachusetts sex crimes defense lawyer, I have seen more than my share of defendants who I am quite sure would re-offend as soon as their criminal sentence is finished. But that statute should be reserved for truly sexually dangerous people – rapists and sex offenders who physically harm victims. I realize that the victim of a “flasher” or someone who indecently exposes himself, does suffer emotional harm. But I think that the SJC overstepped reasonable legal analysis in creating an entirely new class of defendants that can be held behind razor wire after their criminal sentence is served, because they feel a compulsion to expose themselves.

Let me be clear: This behavior is disordered, perverted, crude, and objectionable. It is not acceptable on any level, and I am not saying it is. But “dangerous”, in the context of physically attacking someone when a defendant’s history clearly demonstrates that he has never done so previously, but is purely a “flasher”? I disagree. Space inside Bridgewater State Hospital should be reserved for persons who are truly dangerous – not just offensive.