Articles Posted in Sex Crimes

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what-s-that-1527433-300x264In Commonwealth v. Sherman, the Supreme Judicial Court dealt with an issue of first impression in a sexual assault case prosecution.  In the decision, the SJC opined that, in a rape case, “an additional element of proof — [the victim’s] communication of the withdrawal of consent — is required to avoid the risk of a reasonable mistake of fact in a case where the jury may find that the initial sexual penetration was consensual but that the victim withdrew consent during the course of continued sexual intercourse.”

The background was as follows. The victim testified that she and the defendant met at a pub and “[t]he defendant asked [her] if she wanted to ‘hang out’” at his apartment. She “agreed, but explained to the defendant that it was ‘just going to be … hanging out’ because she was gay.” At the apartment, the defendant “attempted to kiss [the victim] on the cheek. [She] responded by putting her hand out and telling the defendant that she was gay and that ‘it is not going past just hanging out.’ The defendant apologized multiple times,” but then proceeded to forcefully restrain the victim and to rape her several times. According to the victim, she “screamed ‘stop’ repeatedly and attempted to push the defendant off her.” Eventually, she was able to leave the apartment. She reported the incident to the police. Officers went to the defendant’s apartment and arrested him after he acknowledged that he had sexual intercourse with the victim. Later, the police searched the apartment pursuant to a warrant and discovered a spoon containing cocaine on the kitchen counter. The defendant testified that he and the victim engaged in consensual intercourse, “that the victim did not ask [him] to stop[] [or] push him away,” and that she “did not seem upset.” During their deliberations, the jury sent the judge a note seeking clarification of the “‘[d]efinition of the rape — does it include if she says No in the middle of the Act? In other words, is it rape if it started consensual and she changed her mind?’ After conferring with counsel, the judge” told the jurors that he understood their “‘question to be can lawful sexual intercourse become unlawful at some point during the act. The answer to that is yes…. Lawful sexual intercourse can become unlawful sexual intercourse, but remember that the Commonwealth has to prove … both portions of the second element [of rape]: Lack of consent and use of force or constructive force.’ Neither party objected to this instruction. Later that day, the jury found the defendant guilty” of two counts of rape. On appeal, “[t]he defendant claim[ed] that it was reversible error for the judge not to instruct the jury explicitly that, in order for initially consensual intercourse to turn into rape, a victim must communicate his or her withdrawal of consent to a defendant and the defendant must persist with intercourse despite the communication.” Continue reading →

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child-1468032-300x225In Commonwealth v. Childs, the Appeals Court affirmed the defendant’s convictions of indecent assault and battery and indecent assault and battery on a child.  In its decision, the Appeals Court ruled that the judge properly admitted evidence of uncharged misconduct by the defendant toward the complainant, in order “to show the nature of the relationship” between them and the absence of accident.

The background was as follows. The defendant was a close friend of the complainant’s family “and had been a part of the [complainant’s] life since her infancy.” The complainant alleged that the defendant sexually abused her over the course of seven years, starting when she was five or six years old. “The charged acts, which occurred in Middlesex County, happened at the beginning and the end of [the seven-year] period.” For some time between the dates of those acts, the complainant’s family lived in Hamden County. The complainant alleged that there, too, the defendant sexually abused her. The defendant was not charged with the commission of those offenses. At the defendant’s trial, the judge admitted the complainant’s testimony as to the defendant’s uncharged misconduct. On appeal, the defendant challenged the admission of that evidence. Continue reading →

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balance-1172800-1-300x204A divided SJC reversed the defendant’s convictions for various sex offenses – rape of a child and indecent assault and battery upon a child – in Commonwealth v. Alvarez because the prosecutor, in her closing argument, erroneously “told the jury of critical corroborative evidence that was not presented at trial.”

The background was as follows. “The strength of the Commonwealth’s evidence in this case rested on the credibility of Camila, a twelve year old girl who recounted acts of sexual abuse by the defendant that had allegedly occurred on various occasions when she was between the ages of six and nine. The defendant is Camila’s godfather, and is married to Camila’s aunt; Camila thinks of the defendant as her uncle.” Camila testified that during an episode of abuse in the defendant’s house, his “penis touched [her] vagina,” after which “her vagina felt ‘sticky,’ ‘wet, and disgusting.’” Camila stated that after the defendant drove her home, she still “felt ‘wet and sticky and gross,’ [so she] asked her mother if she could shower.” “This was the only [alleged] sexual incident in which there was any indication that the defendant had ejaculated, so corroboration from a source other than Camila that she felt ‘wet and sticky’ would strongly corroborate her testimony regarding that incident.” During the prosecutor’s opening statement, she told the jury “that Camila would testify that, after she returned home and told her mother that she needed to ‘take a tub or a shower,’ ‘[h]er mom said, “Why? You just took one before you left, a few hours ago.”’ However, when Camila testified, she [stated] only that she had asked her mother whether she could take a shower…. She was not asked what her mother said in response to her desire to take a shower, and did not testify as to any statement made by her mother regarding that incident. When Camila’s mother testified, the prosecutor did not ask about this incident; the mother said nothing about Camila asking to ‘take a tub or a shower’ or her saying she felt ‘wet,’ ‘disgusting,’ or ‘sticky’ when she came home.” “However, during closing argument, the prosecutor, in answer to defense counsel’s argument that the case rested solely on the words of Camila, said: ‘the Commonwealth submits that’s not true. You have some corroboration … of [Camila’s] word in other forms. You have her mom saying … she told you how that first time [Camila] came home and asked to take a bath, because she felt disgusting? Mom told you, “She did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.” That’s corroboration.’ Defense counsel objected at the end of the prosecutor’s closing argument, informing the judge that there was no evidence that the mother provided any corroboration of Camila’s testimony that she told her mother she needed to bathe…. The judge refused to give any curative instruction.” Continue reading →

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gavel-2-1236453-300x200In a recent decision – Noe v. Sex Offender Registry Board – the Supreme Judicial Court ruled (1) that in sex offender registry reclassification proceedings initiated by an offender, the Sex Offender Registry Board (board) bears the burden of proof by clear and convincing evidence; and (2) that “indigent sex offenders have a right to counsel in such reclassification hearings.”

The background was as follows. “In Doe, Sex Offender Registry Bd. No. 380316v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) …, [the SJC] held that [the board] is constitutionally required to prove the initial classification of a convicted sex offender under the sex offender registry law, G.L. c.6, §§178C-178Q, by clear and convincing evidence.” The same standards apply where the board initiates proceedings to reclassify an offender upward. “The board’s regulations specify a separate procedure for sex offenders seeking downward reclassification.” “The sex offender registry law does not specify the standard and burden of proof for [such] reclassification hearings…. However, the board’s regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence.” In this case, Noe “was classified as a level three sex offender in January, 2007. In the six years following his final classification, Noe lived in the community without any further sexual reoffenses. In January, 2013, he filed a request for downward reclassification and was granted a hearing before the board…. [A] majority of the [panel of examiners] concluded by a preponderance of the evidence that Noe ‘remains a high risk of re-offense.’…. Accordingly, Noe’s request for reclassification was denied…. Noe sought judicial review of the board’s decision in the Superior Court, “includ[ing] claims for declaratory relief under G.L. c.231A, §1, challenging the board’s procedures for failing to provide a right to counsel in the reclassification hearing and [for] placing the burden of proof in reclassification on the offender by clear and convincing evidence.” The Superior Court judge vacated the board’s denial of Noe’s request for reclassification. The judge “declared that the board’s regulations, which place the burden of proof on the offender seeking reclassification, violate the offender’s right to due process under the Fourteenth Amendment … and art. 12 of the Massachusetts Declaration of Rights. The judge further declared that the board’s failure, through its regulations and procedures, to provide counsel for indigent offenders who seek reclassification violates G.L. c.6, §178L(3). The board appealed.” Continue reading →

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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 →