Articles Posted in Sex Crimes

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balance-1172786In a recent decision – Commonwealth v. Sylvester – the Supreme Judicial Court discussed whether an attorney’s failure to advise a client of his obligation to register as a sex offender during a 2002 plea constituted ineffective assistance of counsel. The decision, however, fails to address how additional sex offender registration requirements imposed after 2002 would impact the Court’s analysis of this issue.

The background was as follows. The defendant pleaded guilty in 2002 to a charge of indecent assault and battery, as a result of which he registered as a sex offender. In 2008, the defendant pleaded guilty to a charge of failure to register as a sex offender “and a Superior Court judge sentenced the defendant to probation for three years and imposed community parole supervision for life [CPSL].” In 2013, the defendant filed a motion to withdraw the 2002 guilty plea, in which he argued that his plea counsel was ineffective in failing to communicate a full appreciation of the consequences of pleading guilty to a sex offense. Specifically, the defendant asserted (1) that plea counsel failed to explain that he “‘might have to register with the police indefinitely’”; and (2) that he would not have pleaded guilty if he had “‘fully understood that ‘registering’ meant that [he] would … someday be subject to lifetime community parole.’” The judge denied the defendant’s motion.

In its decision, the SJC noted that “‘[g]enerally, under Massachusetts law, defense counsel’s failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary[,]’ Commonwealth v. Roberts, 472 Mass. 355, 362 (2015), quoting [Commonwealth v.] Shindell, 63 Mass. App. Ct. [503,] 505 [2005],” and that “the Appeals Court [in Shindell] [had] concluded, on this basis, that defense counsel is not constitutionally required to warn of sex offender registration consequences.” Nonetheless, the SJC considered the defendant’s argument that Padilla v. Kentucky, 559 U.S. 356, 364-366 & n.8 (2010), regarding counsel’s failure to warn of the immigration consequences of a plea, had “abrogated the distinction between direct and collateral consequences and created a new framework for determining whether a consequence of conviction has a uniquely ‘close connection’ to the criminal process to require warnings under the right to counsel guaranties of the Sixth Amendment. Under that framework, the defendant assert[ed] that, to provide constitutionally effective assistance, counsel must warn clients about consequences of sex offender registration when they are considering whether to plead guilty to a ‘sex offense’ as defined in G.L. c.6, §178C.” In response to the defendant’s contention, the SJC “reiterate[d] [its previously expressed] conclusion that the only mandate stemming from the Padilla case is that deportation may not be treated as a collateral consequence outside the scope of the Sixth Amendment.”  Continue reading →

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balance-1172786In a recent case, Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, the Supreme Judicial Court changed the standard of proof applicable to classification determinations by the Sex Offender Registry Board (SORB), discarding the existing “preponderance of the evidence” standard in favor of the more stringent “clear and convincing evidence” standard.

Doe was convicted of indecent assault and battery on a child under fourteen. Following the conviction, SORB determined, by a preponderance of the evidence, that Doe should be classified as a level two sex offender. Doe appealed SORB’s decision to the Superior Court, which affirmed the classification level, applying the same standard: preponderance of the evidence. The SJC vacated that affirmation, however, and, pursuant to due process considerations, changed the standard or proof from a “preponderance of the evidence” to “clear and convincing” evidence, which is a higher level of proof. The SJC explained that subsequent to its establishment of the preponderance of the evidence standard for classifying sex offenders in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998), “amendments to the sex offender registry law and other developments” have rendered the preponderance standard inadequate to protect sex offenders against the risk of erroneous over classification by SORB. The Court noted that “[o]n balance, … [the] legislative changes have more often imposed extra burdens on registered offenders than provided them with additional protections. More offenses are now subject to a registration requirement. Sex offenders face increasingly stringent affirmative reporting requirements, and the penalties for failing to meet those requirements are harsher.” The SJC went on to state that “[t]he sex offender registry law in its current form … calls for extensive dissemination of … registry information. Both level two and level three sex offenders’ information is now posted on the Internet…. Consequences of such public dissemination may include housing and employment discrimination, harassment, and assault.” Moreover, although “[a] convicted sex offender’s risk classification now has far greater consequences than were present when [the Court] decided Doe No. 972 over seventeen years ago,” “there is reason to question whether SORB’s … classification guidelines [which have not been updated since 2001] continue to reflect accurately” the current state of scientific “scholarship regarding statutory factors that concern risk assessment.” Continue reading →

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According to an article in the MetroWest Daily News, a Framingham District Court judge ordered a Rhode Island man held without bail in relation to several sexual assault charges. The article states that the man is accused of sexually assaulting and raping the alleged victim over a period of years, beginning when she was thirteen years old. The alleged assaults reportedly began in the early 2000s and ended several years later. Despite the seriousness of the claims, the alleged victim failed to report any of the alleged conduct to the police for years, coming forward only fifteen months ago, in April of 2014. After the report was lodged, the Commonwealth began an investigation but did not arrest the defendant until last week. At the arraignment, the Commonwealth moved to hold the defendant without bail under G. L. c. 276, § 58A.

This statute allows the Commonwealth to move for a “dangerousness hearing” where a defendant is charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

In making a determination as to whether a defendant should be released on conditions versus held without bail, the court takes the following factors into consideration: (1) the nature and seriousness of the danger posed to any person or the community that would result by the person’s release; (2) the nature and circumstances of the offense charged; (3) the potential penalty the person faces; (4) the person’s family ties; (5) the person’s employment record; (6) the person’s history of mental illness; (7) the person’s reputation; (8) the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror; (9) the person’s record of convictions, if any; (10) any illegal drug distribution or present drug dependency; (11) whether the person is on bail pending adjudication of a prior charge; (12) whether the acts alleged involve G. L. c. 209A related issues; and/or (13) whether the person is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction. Continue reading →

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splatter-question-1171359According to an article in the MetroWest Daily News, a Norfolk County Agricultural High School teacher was recently charged with raping a child. The teacher is specifically charged with (1) rape of a child with force; (2) aggravated rape of a child; and (3) indecent assault and battery of a person under 14. The article states that the teacher, a fifty year old male who reportedly knew the alleged victim, perpetrated the alleged sexual assault in Norwood. The alleged victim’s age and gender have not been released and the court documents have been impounded.

For the Commonwealth to prove that the teacher committed the crime of rape of child with force under G. L. c. 265, § 22A, it would have to provide evidence of the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse with the alleged victim; (2) that the sexual intercourse was accomplished by compelling the alleged victim to submit by force or by threat of bodily injury and against his or her will; and (3) that the alleged victim was a child under sixteen years of age at the time of the alleged offense.

For the Commonwealth to prove that the teacher committed the crime of aggravated rape of child under G. L. c. 265, § 23, it would have to provide evidence of the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse, either natural or unnatural, with the alleged victim; (2) that the alleged victim was a child under sixteen years of age at the time of the alleged offense; (3) that the sexual intercourse was unlawful; and (4) there was more than a five year age difference between the defendant and the alleged victim and the alleged victim was under twelve years old or there was more than a ten year age difference between the defendant and the alleged victim and the alleged victim was between twelve and sixteen or at the time of such intercourse, the defendant was a mandated reporter as defined in G. L. c. 119, § 21. Continue reading →

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gavel-1238036Under Massachusetts G. L. c. 123A, § 12, if the Commonwealth has reason to believe a person convicted of a sex offense is likely to re-offend, it may file a petition in the Superior Court alleging the person is a “sexually dangerous person,” and request that the person be civilly committed. Once the petition for civil commitment as a sexually dangerous person is filed, a judge determines whether the Commonwealth’s allegations meet the standard of probable cause to believe the person is sexually dangerous. The person who is the subject of this petition must be provided notice and have an opportunity to appear and contest the allegations. Generally, the petitions for civil commitment as a sexually dangerous person are filed in the months leading up to the person’s release date from confinement.  If a finding of probable cause is made, the person has a right to a trial to determine if he is a sexually dangerous person. If a person is determined to be sexually dangerous after trial, he is then committed to a treatment center for an indefinite period.  This means that he could be committed for as little as one day or for the rest of his life.

In a recent case – Commonwealth v. Libby – the Supreme Judicial Court issued a ruling clarifying the terms of a sexually dangerous person petition. Libby was convicted of a sex offense in 2002 and completed his sentence of incarceration shortly thereafter. In 2013, he was indicted on a different charge (failure to register). Unable to post bail, he was held in custody awaiting trial on the new charge. While he was in held in custody, the Commonwealth filed a sexually dangerous person petition, pursuant to G.L. c.123A, §12. Libby moved to dismiss the petition on the ground that he had already completed the sentence for the sex offense, was therefore not serving a sentence at the time the petition was filed, and thus the Commonwealth was not permitted to file the petition.   His motion to dismiss, however, was denied. Libby then sought relief pursuant to G. L. c. 211, §3, which allows the SJC to review trial court rulings prior to the disposition of a case in certain limited circumstances. Continue reading →

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question-mark-1409010-mAccording to an article in the MetroWest Daily News, the senior foreman for the Wayland Department of Public Works was arraigned in Middlesex Superior Court in Woburn on Friday on various sex offenses, specifically: four counts of rape of a child by force, and two counts of indecent assault and battery on a child under the age of fourteen. The article states that the man has been a foreman for Wayland’s DPW for over two decades and was promoted to senior foreman in 2011. According to the information in the article, the man reportedly raped the alleged victim on multiple occasions and at several locations. The alleged victim told police the abuse started when she was five years old, in 1998, and reportedly stopped in 2006.

For the Commonwealth to obtain a conviction against the man for rape of a child by force under G. L. 265, § 22A, it would have to prove the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse with the alleged victim; (2) that the sexual intercourse was accomplished by compelling the alleged victim to submit by force or by threat of bodily injury and against her will; and (3) that the alleged victim was a child under sixteen years of age at the time of the alleged offense.

For the Commonwealth to obtain a conviction against the man for indecent assault and battery on a child under fourteen under G. L. c. 265, § 13B, it would have to prove the following beyond a reasonable doubt: (1) that the alleged victim was under fourteen at the time of the alleged offense(s); (2) that the defendant committed an assault and battery on that child – an assault and battery is the intentional touching of another person without legal justification or excuse; and (3) that the assault and battery was “indecent,” as that word is commonly understood, measured by common understanding and practices. An indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery may be “indecent” if it involves touching portions of the anatomy commonly thought of as private, such as a person’s genital area or buttocks, or the breasts of a female. Continue reading →

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mobile-phone-in-hand-1307594-mAccording to an article in the MetroWest Daily News, an Ashland man was charged with rape this past week. The article states that the alleged victim, a woman, went to the man’s house this past Tuesday night. It’s unclear whether she was an invited guest, dropped by unexpectedly, and/or what the nature of their relationship was. According to the woman, when she arrived at the home, the man told her that he wanted to have sex with her. She reportedly told the man that she did not want have sex. At that point, he allegedly became “aggressive” toward her, pushed her into the bedroom and repeatedly stated that he wanted to have sex with her. She reportedly continued to tell him no. According to the woman, the man then grabbed her, ripped off her clothes, pushed her on the bed, and forced her to have sex with him. After they had sex, the man went to take a shower and the woman called the police, seemingly from the man’s house. The police arrived and arrested the man.

When the man was brought to court the next morning, the woman asked the court to order that the he stay away from her, but also told the court that she did not want the man to be held without bail pursuant to G. L. c. 276, § 58A, and that she wanted to be able to have phone, email, and text contact with him. She also told the court that she wanted the man to be ordered to see a therapist. Continue reading →

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you-have-mail-899402-mAccording to an article in the MetroWest Daily News, a judge recently excluded certain evidence that the Commonwealth sought to introduce against a twenty-six year old man accused of raping a twelve year old in Northborough.

The man reportedly met the alleged victim on MySpace. The two met on at least one occasion, during which the alleged victim claims they had sex. The alleged victim told her parents about the interaction, and her parents reported the contact to the police. The police then took over and initiated a sting operation in which they communicated with the man over text message, pretending to be the alleged victim. The police saved each of the text messages, but did not bother to save the alleged victim’s side of the communications. The article specifically indicates that the police deleted thirty or more text messages that the police reportedly sent to the man, posing as the alleged victim.

The case went to trial last week. Prior to the trial, the defense and prosecution argued preliminary motions as to the admissibility of various pieces of evidence, including testimony relating to the text messages, and the text messages themselves. The defense attorney sought to exclude all evidence relating to the text messages on the ground that the police and the Commonwealth acted negligently by failing to preserve the other side of the conversation: the text messages sent by the police. The judge presiding over the case – Judge Daniel Wrenn – specifically found that the police had failed to save copies of the messages they sent to the man, and that the messages were then permanently deleted by the police. The judge further went on to rule that the Northborough police either knew, or should have known, the messages would be relevant – particularly after detectives “took the time and had the foresight” to preserve the messages they received from the man. The judge then allowed only a very limited amount of evidence about the text messages to be admitted.   Continue reading →

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rubi-summer-girl-1422912-mAccording to an article in the MetroWest Daily News, a Chelsea man is scheduled to go to trial this coming week on charges of sexual assault. The article states that the defendant, who was twenty-six years old at the time, became friends with the alleged victim, who was twelve years old at the time, on MySpace in 2009. The defendant reportedly traded phone messages with the alleged victim for several weeks and ultimately met her in Northborough in July of 2009. They then reportedly drove to a conservation area and engaged in “sexual activity.” According to the article, the alleged victim told police that she thought that the defendant was sixteen years old and that she told him that she was fourteen. At some point during their interactions, the defendant reportedly offered to provide the alleged victim with liquor and asked her to keep his age a secret from her friends because he could “get in big trouble.”

Police were notified of the defendant’s contact with the alleged victim by her parents. The police then set up a sting, posing as the alleged victim in a series of text messages. During these interactions, the defendant reportedly sent a picture of himself to the police. He also reportedly reserved a room at a motel, allegedly for the purpose of meeting with the alleged victim again. Before the meeting took place, however, the police arrested him. The defendant was charged with statutory rape of a child, aggravated rape of a child (due to the more than ten year age difference), child enticement, and indecent assault and battery on a child under fourteen.

Although the alleged victim claims that she and the defendant engaged in sexual activity, there is no physical evidence of such contact. To the contrary, a rape kit was conducted on the alleged victim and no semen was found. There also does not appear to be any physical evidence of penetration or physical injuries, which one would potentially expect had there been any sort of sexual contact. There also appears to be some question as to the alleged victim’s motives for reporting the interaction with the defendant; the alleged victim appears to have told her parents about her contact with the defendant after she was caught returning home later than she was supposed to be and offered the relationship by way of explanation.  Continue reading →

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police-cruiser-1066864-mAccording to an article in the MetroWest Daily News, a seventeen-year-old boy from Sudbury was charged with enticing a child under the age of sixteen. The article states that a resident from Skyview Lane called the police around 3:30pm this past Wednesday. The caller stated that a person in a car had made statements to two twelve-year-old boys and allegedly tried to get them to enter the vehicle. The caller then provided a description of the car, which was broadcast to other officers in the area. Officers responding to the scene then stopped a vehicle that matched the caller’s description. The two boys identified the driver as the person that had tried to get them into his car.   Police subsequently arrested the driver, whose name is not being released due to his age. The police also searched the vehicle and reportedly found items that supported the allegations. The teen was arraigned in Framingham juvenile court on the charge of enticing a child under the age of sixteen under G. L. c. 265, § 26C.

To prove that the teen is guilty of enticement of a child under the age of sixteen, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the alleged victim(s) were under the age of sixteen, or that the teen believed to be under the age of sixteen; (2) that the teen enticed the alleged victims to enter his vehicle; and (3) that the teen did so with the intent that he (or another person) would commit one or more of the following offenses:

  • Indecent assault and battery on a child under the age of 14, on a person with an intellectual disability, or on a person 14 years or older;
  • Rape of a child under 16 with force or abuse of a child under the age of 16;
  • Assault on a child under 16 with intent to commit rape;
  • Inducing a minor to become a prostitute;
  • Open and gross lewdness;
  • Disseminating matter harmful to a minor;
  • Disseminating or possessing to disseminate obscene matter;
  • Posing or exhibiting a child under 18 in a state of nudity or sexual conduct;
  • Knowingly purchasing or possessing visual material of a child under 18 in sexual conduct;
  • Unnatural and lascivious acts with a child under 16;
  • Accosting or annoying a person of the opposite sex;
  • Common nightwalker or streetwalker;
  • Disorderly conduct;
  • Disturbing the peace;
  • Indecent exposure;
  • Keeping a noisy and disorderly house;
  • Lewd, wanton and lascivious conduct;
  • Engaging in sexual conduct for a fee;
  • Paying or procuring for sexual conduct with a child under 14.

Continue reading →