The Kickham Comment - Boston Criminal Attorney Blog
Sorry I haven’t posted anything in several days. I’ve been down with a bit of a summer flu, but hope you’ve been visiting, nonetheless.
A major legislative effort has come to a head up on Beacon Hill, which would reform the current child rape statute by increasing the mandatory minimum sentence for some sex offenses against children, and it is heading to Gov. Deval Patrick’s desk. Some people are happy about this development, and some not so happy. Most people would think that everyone would support tougher laws against child sex offenders, wouldn’t they? So why wouldn’t someone be in favor of this? Well, as with most answers, the devil is always in the details, and if you look closely, you might see some cause for concern on the issue of mandatory minimum sentences (which I’ve blogged about previously).
The current effort began to gain traction in June, when the Massachusetts House passed legislation modeled after Florida’s “Jessica’s Law.” That law in Florida provides for a mandatory minimum 25-year sentence for child rape in that state, and many advocates of tougher child rape laws here wanted just such mandatory minimum sentences. And predictably, it has been that issue of mandatory minimum sentences that has caused the most debate in this effort.
Child protection advocates and those pushing for stronger, tougher child rape laws argue strongly for the mandatory minimum sentences, in which a judge, following a guilty finding on certain charges, has no discretion in sentencing: He or she must impose the mandatory minimum sentence, in state prison. (It is the state prisons in Massachusetts, such as Walpole or Cedar Junction State Prison, which house some of the worst, most violent offenders in Massachusetts.) If at this point in your reading this post, you’re strongly in favor of this change and wondering why anyone in his right mind would oppose this measure, read on: Many members of the criminal defense bar in Massachusetts, point out that mandatory minimum sentences pose the potential for even greater injustices. As an example, many criminal defense attorneys cite the possibility of what could happen under this bill to a 17 year-old high school student who has sex with his 15 year-old girlfriend. Were that to happen to your child, would you want your son or daughter to face a mandatory state prison sentence, with no sentencing discretion on the part of the judge? The potential problems now become clearer, don’t they?
On Tuesday July 15, the state Senate approved the proposed law, and it’s now on its way to Governor Patrick’s desk. The final version would create a new mandatory-minimum sentence of 20 years in prison for repeat offenders who are convicted of raping a child with force. Sentences would also be increased for the rape of a child involving a weapon and for aggravated indecent assault and battery of a child. The proposed law would also expand the definition of aggravated rape to include providing drugs or alcohol or a person misusing a position of trust, such as a teacher, a coach or a member of the clergy.
The measure has the backing of Attorney General Martha Coakley and Cape and Islands District Attorney Michael O’Keefe, the president of the Massachusetts District Attorneys Association. Senate Republicans also supported the final version of the legislation, even though they ideally wanted mandatory-minimum sentences modeled on Jessica’s Law, which imposes a 25-year sentence for child rape in the state of Florida. They had to drop their demands on that provision.
This is an emotional issue – and understandably so. Child sex abuse is an extremely serious social and legal problem. It’s hard to talk calmly and reasonably about differing positions on this difficult issue without charged feelings erupting. But deal with this we must, and in the most responsible, balanced way we can.
Everyone wants child rapists and sex offenders, especially repeat sex offenders, to be dealt with swiftly and severely. As a Massachusetts sex offense attorney, I believe the best way to achieve this goal, is to do it in a manner that doesn’t catch otherwise “innocent” people in its wake (think of the high school lovers example,) and that assures that less-serious offenders (non-violent, non-repeat offenders) are rehabilitated, rather than mandatorily incarcerated for minimum state prison sentences.