SJC Ruling: State Can’t Commit Serial Flasher If No Threat of Physical Harm

One of the things that make the practice of law interesting is that fine details always make the difference in given rulings.

Such was the case earlier this week when the Massachusetts Supreme Judicial Court (SJC,) ruled against state prosecutors’ attempts to civilly commit a man that has openly acknowledged that he is a serial flasher. Some quick legal background: Like many states, Massachusetts has a legal mechanism to keep people in jail who have been convicted of sex offenses, even after they’ve served their sentences, if it considers those people to be sexually dangerous. This mechanism is known as the Civil Commitment Statute, Massachusetts General Laws Chapter 123, Sec 1. 8. et. seq. In almost all cases, this statute allows prosecutors to bring a petition before a court when a convict is about to complete his or her sentence for a Massachusetts sex offense, and argue that the person should be civilly committed at the completion of his or her sentence, because that person remains a sexually dangerous person and poses a continuing threat of harm to others. Basically, when prosecutors file such a petition, they’re saying “Yes, this person served his sentence, but he’s still sexually dangerous, and shouldn’t be allowed on the streets. He should be incarcerated.” When a person is “civilly committed,” he or she is ordered held against their will at Bridgewater State Hospital, which is essentially a state mental hospital. Convicts that have been judicially declared to be criminally insane, and sexually dangerous persons, are held there. It is essentially a hybrid between a hospital and a prison, complete with armed guards and barbed wire.

The minimum requirement that prosecutors must meet to civilly commit a person, is a showing that the person poses a threat of physical harm to himself or others – and that’s what makes this case interesting: It poses the question: Is a flasher someone who poses a threat of physical harm to others? As I said, an interesting question. A voyeur is someone who likes to watch others sexually. A flasher is someone who wants to be watched sexually. While both actions are almost certainly offensive, do they pose the threat of physical harm? In this ruling – which the court went to great length to isolate as applying to this case and this case only – the answer was no, and the state’s efforts to civilly commit the man were rejected. The defendant in this case, named Donald Suave, has been convicted of the Massachusetts sex crime of “open and gross lewdness” seven times, almost always flashing young adult women, sometimes even masturbating in the process. He openly acknowledged to psychiatrists that he has done this as many as 30 times since he was a very young teenager.

Obviously, this man has serious psychosexual problems. But the statute requires that this specific question be answered: Does he pose a threat of physical harm or violence to others? The court said no, but drew a very narrow line, emphasizing the importance of the words “contact sex crime” in the interpretation of the civil commitment statute. Clarifying that if the defendant had done this while stalking someone, or engaged in this behavior in front of child, their ruling would have been different, the court ruled that “The Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. “A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.” The court’s ruling was authored by Justice Francis X. Spina.

Court rulings like this can often be fractured, (some would say distinctive,) and this ruling is no exception. That’s so because while emphasizing that its ruling was restricted to this defendant and this particular case only, Spina also wrote that the ruling should not be interpreted to mean that sex offenders who have committed only noncontact crimes such as flashing do not pose a threat of harm to others. According to Spina, “Each case is specific. “We can easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant.”

Uh-huh… Now that that’s clear… Regardless of this somewhat mixed ruling, as a Boston, Massachusetts sex crimes lawyer, I think it’s clear that this ruling will not protect offenders who have physically harmed, or posed the threat of harm to, others – and that’s obviously a good thing. But it’s also my opinion that this ruling will make it harder for prosecutors to civilly commit some sex offenders – those who aren’t very likely to commit bodily harm against another. And that, too, is a good thing. The state’s power to imprison someone is second only to its power to execute someone. Obviously, the bar for both of these should always be high.

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