Articles Posted in Sex Offenses

In my previous post on this subject, I wrote of how colleges and universities across the United States are rapidly disassembling the way that accusations of college campus rape and college campus sexual assault are handled – and of how, in the process, many accused students’ legal and constitutional rights are being trampled in the process.

While there are many examples of this disturbing trend across the country, making Exhibit “A” is the story of John Doe v. Amherst College: A shocking story of how a male student was railroaded out of one of the country’s most “esteemed” universities, based on the shallowest of claims and weakest of evidence offered.

This suit raises disturbing questions about whether colleges and universities conducting their own internal “investigations,” do so within the rules of law. These questions haven’t come out of nowhere – they’re prompted at least in part by the pressure that federal regulators have exerted upon colleges and universities to use a less stringent standard of evidence to “convict” an accused student, than that which has been used in courts across Massachusetts and the entire country for hundreds of years. As anyone who has ever read a legal thriller or watched the same kind of movie, in order to legally convict an accused of a crime (any crime, never mind one so serious as sexual assault or rape – a jury or judge must find that the accused is guilty to a standard of “Beyond a Reasonable Doubt.”

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There’s a growing trend across Massachusetts college campuses, and at universities throughout the United States, and it isn’t pretty: Colleges and universities that conduct their own “investigations” over accusations of sexual assault, and hear “evidence” in their own internal “tribunals,” consisting of anything but trained judges or even attorneys.

What’s going on here, you ask? Why aren’t accusations of campus rape referred to the local police department for investigation, just as they would be normally? Two reasons – neither of which is conducive to producing just outcomes in cases of Massachusetts campus sexual assault accusations: 1) Campus ‘women’s rights’ activists (read: militant feminist extremists who think all men are out to “conquer” them,) have created enormous pressure on college officials to punish – fast and furious – anyone accused of campus sexual assault or rape. Their “rationale” for keeping these investigations internal (on campus)? They claim that police departments and prosecutors’ offices “don’t care” about allegations of rape or sexual assault on college campuses. (Yes, you read that correctly); and 2) The U.S. Department of Education, which doles out hundreds of millions of dollars to colleges and universities every year in the form of federal grants and financial assistance and enforces a federal law called “Title IX,” wants universities to “get tough” on campus sex assaults – and they’re using their purse strings to make sure that happens. Seemingly, without regard for minor things called “justice,” “due process,” and “presumption of innocence.”

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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.”

In my previous post on this subject, I wrote of how, recently, my wife and I, as well as several other people, were exposed (pardon the pun) to a man on Cape Cod who was wearing a “swim suit” that was, in the expressed opinion of several observers, extremely offensive and obscene. I mentioned how odd the timing of this incident was, because the Massachusetts Appeals Court had delivered a ruling earlier that very week, on the subject of what is and isn’t legal, when it comes to very revealing clothing.

The defendant in that case, Commonwealth vs. Coppinger, was charged with the Massachusetts sex offense of Open and Gross Lewdness. He was tried before a jury, and was found guilty of that charge. He appealed his conviction, his lawyer arguing that the judge who presided at his earlier trial erred in denying the defendant’s Motion to Dismiss. That Motion had claimed that the statute prohibiting open and gross lewdness is “unconstitutionally vague,” and thus unenforceable. In addition, the defendant also argued on appeal that the trial judge erred again when instructing the jury on an accepted definition of the word “exposure” – because he claimed he was not “exposing” himself. Why? Here’s where things get interesting: Because, the defendant claimed, the translucent (see-through) “compression shorts” he was wearing, constituted “clothing,” and thus he could not have been legally “exposing” himself.

Interesting argument, but the Appeals Court denied both claims. First, on the issue of whether the statute was vague, the court outlined what elements of this Massachusetts sex offense the Commonwealth must prove beyond a reasonable doubt, which are: (1) That the defendant “exposed his or her . . . genitals, buttocks, or female breasts to one or more persons”; (2) That the defendant did so “intentionally”; (3) That the defendant did so “openly,” that is, he or she intended public exposure, or recklessly disregarded a substantial risk of public exposure, to individuals who might be offended by such conduct; (4) That the defendant’s act was committed in such a manner as to produce alarm or shock in anyone witnessing it; and (5) That one or more persons were in fact alarmed or shocked by the defendant’s act of exposing himself or herself.”

The other day, my wife and I were on Cape Cod. Suddenly, she directed my attention away from the water I was gazing at. “Look over there – Can you believe that?” she asked, incredulously. What I saw was a man, who appeared to be in his mid-to-late 50’s or perhaps early 60’s, “wearing” – and I use that term loosely – what I am sure he would have claimed was a “bathing suit.” What it actually consisted of, was two cords around either hip, leading to a small swatch of cloth that acted as a pouch, or pocket, for the man’s genitals.

To give you an idea of how much material this “pocket” consisted of, think of this comparison: If you made a fist, the material this man was wearing would not be enough to cover the top of an average person’s fist. In the rear (pardon the pun) there was no material whatsoever; his buttocks were completely exposed. I myself was quite offended (and I’m no prude.) Not just ‘somewhat’ offended, but very much. Other people in the area that we observed displaying uncomfortable facial expressions were also offended, and I know this for a fact because I quietly asked them if they were. Even children and teenagers were staring in stunned amazement. The man was not oblivious to the resulting attention, and he seemed to enjoy it, at one point even getting off his lounger to engaging in “stretching.”

OK, quick: Was this man’s appearance a crime in Massachusetts? Or just extremely poor taste? As a Boston sex offense lawyer, I can tell you that I’ve seen many of these types of cases. But first, exactly what Massachusetts sex crime could a person such as the above man, be charged with? The appropriate criminal charge for someone appearing in a state of ‘dress’ that violates state law is called “Open and Gross Lewdness,” which is a violation of M. G. L. c. 272, § 16. That statute makes it a crime to “intentional(ly) expose .. genitalia, buttocks, or female breasts to one or more persons.” This charge is also known as “Lewd and Lascivious Conduct.” Exposing one’s genitals, buttocks or breasts is not the only way that a person could be charged with this crime; it is just one. Public urination – sadly common at public gatherings such as sporting events – also triggers this crime.

In my previous post on this subject, I wrote about how people sometimes ask me how I can defend clients accused of sex offenses, and of how my answer is always the same: Not everyone accused of a Massachusetts sex offense is guilty. A recent example is a young man by the name of Ross Currier, 26 years old, who was recently arrested by Boston Police, jailed, fingerprinted, and arraigned on charges of Assault & Battery and Indecent Assault & Battery on a Person Over age 14. He was brought into court, his name brought before the media, and his reputation ruined in the process. After being released on bail, he was forced to wear a visible GPS device, tracking his movements at all times. There was just one slight thing wrong: Currier was completely innocent; he never committed this crime.

On February 15 2014, a woman reported to Boston Police that she was jumped by a man, from behind, early that morning outside her North End apartment. She reported that the man threw her to the ground, groped her sexually, and took a photo under her skirt with his smartphone. About three weeks later, Boston Police arrested Currier on March 10 after the alleged victim saw him in the North End and told patrol officers that she was “90 to 95 percent positive” that Currier was the man who had attacked her.

Another slight hitch: It seems the alleged victim had previously also misidentified another man in a photo array she had been showed by police, who – unbeknown to her – just so happened to be incarcerated at the time of the alleged assault. Worse, Currier had an alibi, specifically that he was at home with his fiancée at the time of the alleged attack. Notwithstanding, Currier was charged with this extremely serious crime.

The past day or so, I’ve had several people see me in court and express shock over the discovery of a probation sentence given five years ago, in 2009, to du Pont family heir Robert H. Richards IV, following his agreement at that time to plead guilty to fourth-degree rape of his own daughter. Across the country and the internet, there is outrage that the judge in the case sentenced Richards to probation, without prison time.

Despite the fact that the documents in the case were never sealed, the ruling somehow managed to escape notice until last month (March 2014,) when Richards’ former wife, Tracy Richards, filed a lawsuit in Delaware Superior Court on behalf of their children alleging “personal injuries arising from childhood sexual abuse.” The 11-page suit alleges that not only was their daughter abused, but that Richards sexually abused their son, too. The suit seeks unspecified monetary damages. So, it seems that this news can be filed under “Eventually, the truth wins out.”

On the surface, this sentence, in response to the guilty plea on a charge of rape, seems shocking. But people need to understand the details that drive such a sentencing decision. Understand: I’m not necessarily “excusing” this sentence, I’m just explaining it. As a Boston Massachusetts sex crimes lawyer, I know all too well how complex these cases can become.

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.

Amazing how a new expression or grammatical term can crop up almost literally overnight, isn’t it? The newest term that seems to be on everyone’s lips today: “Upskirting.” Seemingly a new verb that would have been met with confused looks just yesterday, now seems to be somehow thrown around as if it were “snowboarding” or “backpacking.”

And what gave birth to this newest addition to the public lexicon? An interesting legal case, of course (that’s one of the things that can make the practice of law so fascinating.) Background: It seems that a certain lothario was caught on the MBTA taking cell phone photos of women’s underwear, by angling his camera underneath their skirts as they sat across from him on the MBTA. We call that kind of person a Loser, with a capital “L.” At any rate, he was caught, and prosecuted in the Boston Municipal Court under the state’s criminal voyeurism statute, M.G.L. Ch. 272, Sec. 105, a misdemeanor. In 2012 he filed a motion to dismiss; that motion was rejected, and the SJC heard the case in last year, in 2013.

Under this statute, prosecutors needed to prove (importantly) both: 1) That the victims who had been photographed had a “reasonable expectation of privacy” while on public transportation, and 2) That they were photographed while they were “nude or partially nude.” The language of the statue was written this way because when the law was passed in 2004, it was intended to punish people who had set up hidden cameras in the walls of bathrooms or store dressing rooms, where intended victims would be “nude or partially nude.” In the case that the SJC dismissed here, the alleged victims were neither “nude or partially nude.” Thus, the court correctly found that prosecutors failed to prove the elements of the crime. Period.

When people ask me how I can defend people accused of sex crimes, there’s often a look of disbelief on their faces. They’re conjuring images of a rape victim being dragged into an alley or car, to be later violently beaten and raped. That’s a horrible image, so I understand why some people can have a hard time understanding why criminal defense lawyers defend people accused of sex crimes.

What they don’t understand, is that in a significant number of cases where rape or some other Massachusetts sex offense is alleged, the “facts” are often anything but clear. As a Dedham, Massachusetts sex offense lawyer, most of the defendants I represent are anything but sex offenders: A great many of them are college students, who were on a date, in a relationship, or were involved in a consensual “one-night stand,” when the other person involved, screamed rape. When that happens, the accuser is almost always a woman; the accused almost always a man.

And when that happens, as a Massachusetts college sex crimes attorney, I can assure you that the next thing to show up on the scene is an invisible, yet very palpable presence: Gender bias. In too many cases that I have seen, there is an immediate presumption that the male defendant is guilty of the crime alleged. The rationale for this un-acknowledged bias, is the idea that most men are much, much physically stronger than women; that the average woman is a weak, frail being unable to defend herself against a brute man. (By the way: Don’t doubt that, as with all kinds of prejudice, the worst kind of bias is the kind that is unacknowledged.) The idea that women are unable to physically resist an attack is, of course, unfounded – and the lie to this has been demonstrated by the fact that women now serve on police departments, and in fighting, battlefield positions in the military.