Articles Posted in Sex Offenses

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.

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.

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.

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.

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.

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.