Articles Posted in Sex Crimes

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gavel-1238036-300x201In Commonwealth v. Wimer, the Supreme Judicial Court ruled that the defendant did not have to register as a sex offender because his two convictions for sex offenses – specifically, two convictions for open and gross lewdness – were adjudicated during the same proceeding, such that he did not have a “second and subsequent” conviction (a prerequisite for imposition of the registration requirement under G.L. c.6, §178C).

The background was as follows. “[T]he defendant pleaded guilty to two counts of open and gross lewdness, in violation of G.L. c.272, §16. The charges arose from two incidents in which the defendant masturbated in front of his girl friend’s nine year old daughter. The defendant’s sentence on the second conviction included an order to register as a sex offender pursuant to G.L. c.6, §178C, which requires such registration upon a ‘second and subsequent adjudication or conviction of open and gross lewdness.’” Subsequently, the defendant challenged the registration requirement by filing in the trial court a motion to correct an illegal sentence, pursuant to Mass.R.Crim.P. 30(a). The judge denied the motion. On appeal, the defendant “argu[ed] that, as [his] two convictions were adjudicated during the same proceeding, he did not have a ‘second and subsequent’ conviction as required by §178C and, thus, he was not required to register as a sex offender.” Continue reading →

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gavel-2-1236453-300x200In a recent case – Commonwealth v. Grundman – the Supreme Judicial Court ruled that GPS could not be imposed as an additional condition of release approximately ten months after the defendant’s original sentencing hearing.

The background was as follows. The defendant pleaded guilty to several counts of rape of a child and was sentenced to a term of incarceration and a term of probation. “In open court, the clerk announced that the defendant’s sentence would be ‘subject to the terms and conditions of the probation department.’…. The clerk then announced … fifteen special conditions.” However, “[d]espite the provisions of G.L. c.265, §47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation,” the clerk did not announce that condition. “Similarly, neither the judge nor the parties had mentioned a GPS monitoring condition during the sentencing hearing or the plea colloquy…. Shortly after sentencing, the defendant signed a probation contract stating that he was required to ‘wear a GPS … device in accordance with … c.265, §47.’ The probation contract was signed by a Superior Court judge different from the judge who sentenced the defendant. That judge’s signature was dated two days after the defendant’s sentencing hearing. The GPS monitoring condition was also memorialized on the docket. Approximately ten months after the defendant’s sentence was imposed, he filed a motion to remove the GPS monitoring condition from the docket, claiming it had been erroneously entered. Although the condition had not been announced at sentencing, the judge determined that he could correct this mistake because the defendant’s guilty plea to the rape of a child was subject to mandatory GPS monitoring as a condition of probation under [c.265,] §47. The judge then resentenced the defendant to include GPS monitoring as a special condition of probation.” Continue reading →

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gavel-1238036-300x201In Commonwealth v. Wilbur W., the Supreme Judicial Court affirmed a juvenile defendant’s adjudication as delinquent for having committed statutory rape, rejecting the juvenile’s contention “that this was a case of juvenile experimentation among peers rather than a case of sexual abuse.”

The background was as follows. At the time of the incident in question, the victim was eight years old and the juvenile was twelve years old. The boys’ families lived in the same neighborhood and the boys were friends. During a sleepover at the victim’s home, “[t]he juvenile instructed the victim to ‘pull down [his] pants’ so that [the juvenile] could put his ‘penis’ in the victim’s ‘butt.’ The victim was ‘shivering’ and ‘scared.’…. The juvenile pulled down his own pants, and told the victim to put his mouth on the juvenile’s penis. The victim complied for ‘two seconds’ because the juvenile was ‘bigger,’ and [the victim] was afraid of what the juvenile would do to him. The juvenile then inserted his penis in the victim’s ‘butt.’…. The victim revealed the occurrence of the incident to his family the next day. The defendant was charged with rape of a child with force and at the trial, “[t]he jury returned delinquency findings on the lesser included offense of statutory rape.” On appeal, the defendant contended (1) “that his adjudication of delinquency violate[d] his right to [substantive] due process … because the Legislature did not intend to impose strict liability [for statutory rape] on a person below the age of sixteen,” who “ha[d] limited capacity to make reasoned choices or to understand the consequences of his or her behavior”; (2) that the statutory rape statute (G.L. c.265, §23) “fosters arbitrary and discriminatory enforcement and is therefore void for vagueness” under the due process clause of the Fourteenth Amendment; and (3) “that he was unfairly selected for prosecution in violation of his right to equal protection under the law.” Continue reading →

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cargo-plane-2-1563260-300x199In a recent decision – Commonwealth v. Cruz– the Appeals Court reversed the defendant’s convictions of two counts of indecent assault and battery on a child, subsequent offense, because “there was insufficient evidence to support his convictions.”

The background was as follows. The complainant (Jane), “a thirteen year old girl, was an intern at an aviation company…. While she was working one day, the defendant, an almost sixty year old man who she had met before at the airport, waved her over to him. After a brief conversation, the defendant told her he would like to get her a gift for her upcoming birthday. He said that he would like to give her a hug, but that they should do it in another room. Jane went into a nearby hallway for a while, and waited, then returned to work after a couple of minutes. When she later saw him again in the airplane hangar, she asked if the defendant still wanted the hug, and he hugged her briefly around the shoulders. The defendant then asked if Jane wanted another hug, and said that they should go into another room. He led her to a separate room, with no one else present. He gave her a second hug, a little tighter, with a kiss on the neck…. The defendant then gave Jane a third hug without her permission, which was lower down, on her waist and hips. He held her ‘very tight … like a hug [she] would receive from [her] parents.’…. The defendant then stepped back with one hand grabbing her polo shirt at her right hip, ‘lifting it slightly,’ but not exposing or touching any of her skin. He also grabbed Jane’s hand. After starting to lift the shirt, he paused, and put it down.” Two indictments charging indecent assault and battery on a child were returned against the defendant, one based on the third hug and the other based on the lifting of Jane’s shirt. The defendant was convicted of both counts. Continue reading →

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stone-judge-1219357-225x300In Koe v. Commissioner of Probation, the Supreme Judicial Court ruled that G.L. c.276, §100A(6), which prohibits a former level two sex offender from sealing a criminal record, violates state rights to due process and is therefore unconstitutional as applied under the circumstances present in this case.

The background was as follows. “In 1995, … Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child … and one count of indecent assault and battery on a child under age fourteen…. The offenses occurred in 1990, when Koe was twenty-two years old…. As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender…. Her obligation to register as such commenced in 2003. In 2013, Koe petitioned a SORB hearing panel for reclassification and relief from the obligation to register. The panel heard evidence (1) that “Koe accepted responsibility for her sex offenses”; (2) that Koe had received sex offender therapy and completed a relapse prevention plan; (3) that she was assessed by a psychologist as having “‘no deviant interests in children of any age’”; and (4) that, according to research on the subject, there is “an ‘extremely low’ reoffense rate among female sex offenders.” “[T]he hearing panel concluded that Koe ‘present[ed] no cognizable risk to reoffend and no cognizable degree of dangerousness.’” Nonetheless, “the panel determined that, because Koe had been convicted of a ‘sexually violent offense,’ G.L. c.6, §178C, she was not eligible, as a matter of law, for relief from the obligation to register, see G.L. c.6, §178K(2)(d). Accordingly, it ordered her to register as a level one sex offender.” Koe appealed to the Superior Court pursuant to G.L. c.30A and a judge “grant[ed] Koe permanent relief” from the registration requirement, on the basis of the SORB hearing panel’s “conclusions regarding Koe’s lack of dangerousness…. “

Koe then filed a petition with the Commissioner of Probation to seal her criminal record, pursuant to G.L. c.276, §100A, and related provisions. Section 100A contains a particular subsection that governs the sealing of sex offenses. It provides: ‘Sex offenses, as defined in [G.L. c.6, §178C], shall not be eligible for sealing for [fifteen] years following their disposition …; provided, however, that any sex offender who has at any time been classified as a level [two] or level [three] sex offender, pursuant to [G.L. c.6, §178K], shall not be eligible for sealing of sex offenses’ (emphases added). G.L. c.276, §100A(6).” In light of the statutory language “prohibit[ing] the sealing of sex offenses by someone who has ever been classified as a level two or level three sex offender,” “the [Commissioner of Probation] responded that Koe was ineligible to seal her sex offenses because she was once classified as a level two sex offender…. Koe challenged the commissioner’s response … by way of a complaint in the county court seeking declaratory, injunctive, and extraordinary relief. Without decision, the single justice reserved and reported the case to the full [SJC].” Continue reading →

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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 →