Massachusetts Attempted Rape Conviction Reversed

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.)

At trial, Van Bell was convicted of both “attempted rape of a child” and solicitation of a prostitute. He appealed on several grounds, arguing that there was insufficient evidence to convict him on the attempted rape charge. This is where the legalese comes in. You see, while the police, the prosecutor, you, me, and even the judge knew this sickening pervert fully intended to rape a (unknown to him, fictitious) 4 year-old child, the legal issue on appeal was, “Did the defendant come close enough to the charged act (attempted rape,) to warrant a guilty finding on that charge”? The answer was no.

The reason? The legal definition of “attempt.” It’s not the same as a lay person understands it to be. It’s far more surgical and legalistic. You see, an “attempt”, in the eyes of the law, must go beyond mere agreement to commit an unlawful act; it must exceed “preparation” to commit an unlawful act, and progress or mature into “perpetration”. In this case, the SJC majority found that this defendant – while he fully intended to commit the act – hadn’t yet undertaken steps to legally “attempt” the rape. Specifically, this required an “overt act” under the relevant statute – and the court’s majority found that “overt act” to be lacking here. Hence, the court reversed the “attempted rape” charge – but they did find Bell guilty on the charge of solicitation of sex for a fee.

Sounds unfair, doesn’t it? I wouldn’t blame you for feeling this way. But these legal principles and maxims exist for sound reasons. Once they start to slide to accommodate individual prosecution objectives, no matter how laudable those objectives, and how horrible the crime, justice will suffer in the long term.

As a Boston sexual offenses lawyer, I’ve seen my share of detestable crimes. But I’ve also seen my share of cases where prosecution should not have been brought in the first place. Remember, if people want the law to stand up for them, they need to stand up for the rule of law.

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