Articles Posted in Sex Offenses

It would seem that almost anyone could agree on the need to criminalize and punish Massachusetts sex offenders who deliberately send obscene messages electronically to minors, wouldn’t it? Well, make that “anyone could agree on the need” to accomplish these goals – but hardly the method.

This reality has been on full display in the recent past, as the legal and legislative system in Massachusetts twist and turns its way to consensus and legal enforceability of measures to accomplish this goal. Exhibit A in that effort has been the case of Commonwealth v. Zubiel, 921 N.E.2d 78 (Mass. 2010.) This defendant was convicted in Massachusetts Superior Court of electronically sending sexually graphic instant messages to a recipient that had identified herself via the instant messages as a 13 year-old girl named “Melissa QT 1995”. Unbeknownst to Zubiel, “Melissa QT 1995” was an undercover state police officer. Zubiel texted “Melissa” that he was 25 years old, and the two agreed on a time and place where they would meet. Zubiel asked “Melissa” for nude photographs, questioned her about her sexual experience, and finally set up an in-person meeting with her. Zubiel was apprehended and arrested as he was walking toward an apartment building address which the undercover officer said “Melissa” lived at. The Commonwealth won convictions on four charges of attempting to disseminate matter harmful to minors under Massachusetts General Laws C. 272, § 28. Zubiel appealed those convictions, and the Supreme Judicial Court (SJC) reviewed the case on its own motion.

In a decision that enraged a lot of people, on Feb. 5, 2010, the SJC overturned Zubiel’s conviction. The justices agreed with Zubiel’s argument that “harmful material” banned under M.G.L. C. 272, § 28, the law in effect at the time, didn’t include instant messages or other forms of electronic communication. The reasoning: C. 272, § 28 provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished. . . .” “Matter” is defined in G.L. C. 272, § 31, for purposes of § 28, as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” The court ruled that instant messaging and online conversations do not specifically fall under the definition of “matter” under § 31.

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.

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.

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.)

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.

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.

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.

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.

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.

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.