The Kickham Comment - Boston Criminal Attorney Blog

In a major step forward in progress toward treating the opposite genders truly equally, the Massachusetts Supreme Judicial Court recently handed down a sharply divided ruling in a case involving underage sex and statutory rape.

The case involved consensual sex between a 14 year old high school boy and three underage girls, two of whom were 12 years old and the other 11. Various sex acts were alleged to have taken place between the boy and each of the girls, between August and October of 2007. The police investigation revealed that no force was involved in any of the encounters, and that the alleged sex acts between the boy and all three girls was voluntary and consensual on the part of all four youths. However, Plymouth County District Attorney Timothy J. Cruz chose to prosecute only the boy with statutory rape, not any of the girls. Under Massachusetts law, it is deemed a crime for anyone of either gender under the age of 16 to have sex.

Notwithstanding the wording of any statutes concerning gender, statutory rape laws have almost always been enforced against boys under the age of 16, not girls. Statutory rape laws are very old, and had their origin in the antiquated legal concept that a daughter was the property of her father.

In my previous post on this subject, I reviewed the case of a man who had been convicted of eleven (11) prior offenses of exposing himself to women and girls. Despite this history, a Massachusetts Superior Court judge ruled that, following his release from prison after serving a sentence for his most recent of those convictions, the state could not “civilly commit” the defendant, because his prior offenses did not involve physical contact with any victims. A “civil commitment” is distinct from a criminal conviction. A civil commitment involves a situation where the state petitions a court under a specific state statute that allows for the state to incarcerate someone against his or her will, because they suffer from some enumerated form of mental disability or defect.

However, the Superior Court judge who refused to civilly commit this defendant, based his reasoning on the fact that the individual never actually touched or inflicted physical harm on any of his victims, but was ‘only’ an exhibitionist. Upon review, the Massachusetts Appeals Court disagreed, ruling for the first time that such offenses, which are known legally as “noncontact sexual offenses,” can be used as the basis for civilly committing someone against their will. In arguing for this ruling, Plymouth County District Attorney Timothy J. Cruz spoke to the legislative intent behind the creation of this statute, stating, “…The legislature had already decided (when it enacted this law) that a conviction for open and gross lewdness (should be) an appropriate basis, along with the other requirements in the statute, to find that someone was a sexually dangerous person.” In agreeing with Cruz’ position, judge R. Marc Kantrowitz of the Appeals Court ruled that the Superior Court had erred, and that the legislature fully intended to include noncontact offenses such as Open and Gross Lewdness, as subject to the statute. What this now means is that a conviction for Open and Gross Lewdness (I.e., exposing oneself to another in public,) can later be used as the basis to civilly commit a defendant after he or she has either been convicted and/or served any criminal penalty. (Note: There must first be a conviction on this charge, not merely an arrest or criminal charge.)

At the Superior Court trial on the issue of civilly committing this individual, it was acknowledged by both the prosecution and the defense that no physical contact occurred between the defendant and his victims. Hence, there were two legal points focused on at both the Superior Court trial, and later the Appeals Court: 1) The definition of “harm” to a victim of Open and Gross Lewdness; and 2) Did the legislature intend to include such noncontact offenses in enacting this statute? Commenting on the issue of harm, Cruz offered that “The notion that a man who publicly exposes himself to a young girl or woman, or who publicly masturbates in their presence, does not cause them harm is ridiculous.” On the issue of legislative intent, defense attorney William Korman commented, “The Appeals Court has now said essentially that any exhibitionist who’s likely to do it again – and by the way, they’re all likely to do it again – is now per se sexually dangerous.” (E.g., without any argument or hearing on that issue.) But the majority of the Appeals Court disagreed, and until the Supreme Judicial Court rules otherwise, noncontact sexual offenses can now be used by the state to incarcerate someone, after they have been convicted of that offense, whether or not they have already served a jail or prison term.

A very interesting case was recently decided by the Massachusetts Appeals Court, on the subject of “sexually dangerous persons.” The decision provided a clearer (and much needed) definition of just what constitutes a “sexually dangerous person,” and the state’s ability to incarcerate such individuals when they have not been found guilty of a crime involving any physical contact with a victim.

The Appeals Court decision, Commonwealth vs. Grant, rejected a Superior Court judge’s earlier decision that a sexual offense which did not result in physical contact or physical harm to a victim, did not qualify as an offense that could subject the offender to being civilly committed as a “sexually dangerous person.” The state statute that governs civil commitment of persons suspected of being sexually dangerous is Massachusetts General Laws C. 123, Section A (“M.G.L. C. 123A”.) That statute allows the commonwealth to keep an individual incarcerated after he or she has been adjudicated guilty of a sexual offense, and/or served a criminal sentence, if such person “suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or … whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.”

In the instant case, the defendant, one Darren Grant, was about to be released on an earlier conviction for an offense known legally as “Open and Gross Lewdness.” This generally refers to sexually exhibitionism, or exposing oneself in public, and indeed, this particular defendant had been previously convicted of just that offense – on 11 separate occasions. A serial offender, Grant was about to be released after serving jail term for his most recent conviction, when the commonwealth, through the office of Plymouth County District Attorney Timothy Cruz, petitioned that Grant be held in incarceration under the civil commitment statute, M.G.L. c. 123A, after he completed his criminal sentence. A Superior Court judge, following a two-day trial on the motion, denied the commonwealth’s request, ruling that Grant’s prior convictions did not involve “physical contact or physical harm” to others, that he was not likely to cause physical harm to others, and that therefore, he could not be civilly committed after his prison term under M.G.L 123A.