The Kickham Comment - Boston Criminal Attorney Blog

The past day or so, I’ve had several people see me in court and express shock over the discovery of a probation sentence given five years ago, in 2009, to du Pont family heir Robert H. Richards IV, following his agreement at that time to plead guilty to fourth-degree rape of his own daughter. Across the country and the internet, there is outrage that the judge in the case sentenced Richards to probation, without prison time.

Despite the fact that the documents in the case were never sealed, the ruling somehow managed to escape notice until last month (March 2014,) when Richards’ former wife, Tracy Richards, filed a lawsuit in Delaware Superior Court on behalf of their children alleging “personal injuries arising from childhood sexual abuse.” The 11-page suit alleges that not only was their daughter abused, but that Richards sexually abused their son, too. The suit seeks unspecified monetary damages. So, it seems that this news can be filed under “Eventually, the truth wins out.”

On the surface, this sentence, in response to the guilty plea on a charge of rape, seems shocking. But people need to understand the details that drive such a sentencing decision. Understand: I’m not necessarily “excusing” this sentence, I’m just explaining it. As a Boston Massachusetts sex crimes lawyer, I know all too well how complex these cases can become.

For a long time, Massachusetts sex offenses were – very generally speaking – broken down into “contact offenses,” where the defendant made physical contact with the victim, and “noncontact offenses,” where the defendant engaged in acts that are generally known as indecent exposure, or to use the lay term, “flashing.” Legally, such noncontact sex offenses constitute what in Massachusetts is called the crime of “Open and Gross Lewdness.” When a defendant has a demonstrated history of repeated sexual assaults against a victim or victims – where physical contact is made with the victim, if found guilty the defendant can not only be incarcerated under a criminal sentence. There’s potentially more to follow.

In fact, after the defendant’s criminal imprisonment is finished, the state can then commence civil commitment proceedings to have the defendant declared what is called a “Sexually Dangerous Person.” If this petition is granted, the effect is enormous, because he or she can then be committed civilly to incarceration at the Bridgewater State Hospital. Again, such a commitment does not constitute a second criminal conviction or a second criminal sentence, but a civil proceeding. This is a powerful, and occasionally necessary tool for authorities, when the behavioral evidence of the defendant’s history indicates that he or she is a serial offender, and highly likely to pose a physical danger to the public when released at the conclusion of a criminal prison sentence.

However, that mechanism for seeking a declaration that someone is a “Sexually Dangerous Person,” and thus keeping him or her incarcerated, has always been applied only to Massachusetts sex offenders who have committed contact sex offenses. These offenses include Massachusetts rape charges, Massachusetts Indecent Assault & Battery on a Person Under Age 14 charges, Massachusetts statutory rape charges, Massachusetts Indecent Assault & Battery on a Person Over Age 14 charges, and Massachusetts Assault with Intent to Commit Rape charges. This is just a partial list of Massachusetts sex crimes that can trigger a Sexually Dangerous Person commitment.

Amazing how a new expression or grammatical term can crop up almost literally overnight, isn’t it? The newest term that seems to be on everyone’s lips today: “Upskirting.” Seemingly a new verb that would have been met with confused looks just yesterday, now seems to be somehow thrown around as if it were “snowboarding” or “backpacking.”

And what gave birth to this newest addition to the public lexicon? An interesting legal case, of course (that’s one of the things that can make the practice of law so fascinating.) Background: It seems that a certain lothario was caught on the MBTA taking cell phone photos of women’s underwear, by angling his camera underneath their skirts as they sat across from him on the MBTA. We call that kind of person a Loser, with a capital “L.” At any rate, he was caught, and prosecuted in the Boston Municipal Court under the state’s criminal voyeurism statute, M.G.L. Ch. 272, Sec. 105, a misdemeanor. In 2012 he filed a motion to dismiss; that motion was rejected, and the SJC heard the case in last year, in 2013.

Under this statute, prosecutors needed to prove (importantly) both: 1) That the victims who had been photographed had a “reasonable expectation of privacy” while on public transportation, and 2) That they were photographed while they were “nude or partially nude.” The language of the statue was written this way because when the law was passed in 2004, it was intended to punish people who had set up hidden cameras in the walls of bathrooms or store dressing rooms, where intended victims would be “nude or partially nude.” In the case that the SJC dismissed here, the alleged victims were neither “nude or partially nude.” Thus, the court correctly found that prosecutors failed to prove the elements of the crime. Period.

When people ask me how I can defend people accused of sex crimes, there’s often a look of disbelief on their faces. They’re conjuring images of a rape victim being dragged into an alley or car, to be later violently beaten and raped. That’s a horrible image, so I understand why some people can have a hard time understanding why criminal defense lawyers defend people accused of sex crimes.

What they don’t understand, is that in a significant number of cases where rape or some other Massachusetts sex offense is alleged, the “facts” are often anything but clear. As a Dedham, Massachusetts sex offense lawyer, most of the defendants I represent are anything but sex offenders: A great many of them are college students, who were on a date, in a relationship, or were involved in a consensual “one-night stand,” when the other person involved, screamed rape. When that happens, the accuser is almost always a woman; the accused almost always a man.

And when that happens, as a Massachusetts college sex crimes attorney, I can assure you that the next thing to show up on the scene is an invisible, yet very palpable presence: Gender bias. In too many cases that I have seen, there is an immediate presumption that the male defendant is guilty of the crime alleged. The rationale for this un-acknowledged bias, is the idea that most men are much, much physically stronger than women; that the average woman is a weak, frail being unable to defend herself against a brute man. (By the way: Don’t doubt that, as with all kinds of prejudice, the worst kind of bias is the kind that is unacknowledged.) The idea that women are unable to physically resist an attack is, of course, unfounded – and the lie to this has been demonstrated by the fact that women now serve on police departments, and in fighting, battlefield positions in the military.