The SJC recently issued a decision addressing which offenses qualify as predicate offenses for a dangerousness hearing under G.L. c.276, §58A: Commonwealth v. Barnes and Commonwealth v. Scione. In Barnes, the Court ruled that a violation of G.L. c.265, §23A (rape of child aggravated by age difference, i.e., statutory rape) does not qualify as a predicate offense under G.L. c.276, §58A. In Scione, the Court ruled “that, depending upon the circumstances,” a violation of G.L. c.266, §102A (use of incendiary device) “may (and, in this case, does) … qualify” as such a predicate offense.
“Predicate offenses under [G.L. c.276,] §58A either are specifically enumerated in the statute or fall within one (or more) of the following categories: (1) those felonies that ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another‟ (force clause); (2) any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result‟ (residual clause); or (3) a misdemeanor or felony involving abuse as defined in [G.L. c.209A, §1, the abuse prevention statute] (abuse clause).”
The background of the Barnes case was as follows. When he was forty-three years old, defendant Barnes had sexual intercourse with a fifteen year old girl. He was charged with statutory rape in violation of [G.L. c.265,] §23A. In his appeal from an adverse ruling at a dangerousness hearing under [G.L. c.276,] §58A, he “argu[ed] that (1) §23A does not qualify as a predicate offense under the force clause of §58A; and (2) the residual clause of §58A is unconstitutionally vague. A Superior Court judge agreed[,]” the Commonwealth filed a petition pursuant to G.L. c.211, §3, and the matter made its way to the SJC. In its decision favorable to Barnes, the SJC first ruled that “[b]ecause the use, attempted use or threatened use of physical force is not an element of §23A, [a violation of that] statute does not qualify as a predicate offense under the force clause of §58A.” The SJC also agreed with the Superior Court judge “that the language in the residual clause of §58A is unconstitutionally vague under art. 12 [of the Massachusetts Declaration of Rights] and therefore §23A cannot qualify as a predicate offense pursuant to it.” Continue reading →