Sex Crimes

Published on: September 8, 2014

Sudbury Teen Charged with Child Enticement

According to an article in the MetroWest Daily News, a seventeen-year-old boy from Sudbury was charged with enticing a child under the age of sixteen. The article states that a resident from Skyview Lane called the police around 3:30pm this past Wednesday. The caller stated that a person in a car had made statements to two twelve-year-old boys and allegedly tried to get them to enter the vehicle. The caller then provided a description of the car, which was broadcast to other officers in the area. Officers responding to the scene then stopped a vehicle that matched the caller’s description. The two boys identified the driver as the person that had tried to get them into his car. Police subsequently arrested the driver, whose name is not being released due to his age. The police also searched the vehicle and reportedly found items that supported the allegations. The teen was arraigned in Framingham juvenile court on the charge of enticing a child under the age of sixteen under G. L. c. 265, § 26C.

To prove that the teen is guilty of enticement of a child under the age of sixteen, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the alleged victim(s) were under the age of sixteen, or that the teen believed to be under the age of sixteen; (2) that the teen enticed the alleged victims to enter his vehicle; and (3) that the teen did so with the intent that he (or another person) would commit one or more of the following offenses:

Indecent assault and battery on a child under the age of 14, on a person with an intellectual disability, or on a person 14 years or older;
Rape of a child under 16 with force or abuse of a child under the age of 16;
Assault on a child under 16 with intent to commit rape;
Inducing a minor to become a prostitute;
Open and gross lewdness;
Disseminating matter harmful to a minor;
Disseminating or possessing to disseminate obscene matter;
Posing or exhibiting a child under 18 in a state of nudity or sexual conduct;
Knowingly purchasing or possessing visual material of a child under 18 in sexual conduct;
Unnatural and lascivious acts with a child under 16;
Accosting or annoying a person of the opposite sex;
Common nightwalker or streetwalker;
Disorderly conduct;
Disturbing the peace;
Indecent exposure;
Keeping a noisy and disorderly house;
Lewd, wanton and lascivious conduct;
Engaging in sexual conduct for a fee;
Paying or procuring for sexual conduct with a child under 14.

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Published on: June 14, 2014

SJC Strikes Down Lifetime Community Parole for Sex Offenders

By Daniel Cappetta

Up until this week, Massachusetts law allowed for the imposition of community lifetime parole (CPSL) under G. L. c. 127 § 133D. CPSL is intensive parole supervision by the parole board. It may only be imposed after a defendant is convicted of a sex offense. A CPSL sentence begins after a defendant has completed a committed or probationary sentence on the underlying criminal offense, and lasts for life. While on CPSL, a defendant is subject to a set of mandatory conditions, as well as various other conditions, that may imposed at the discretion of the parole board. If a defendant violates a condition of CPSL, the parole board is required to send him back to jail – for 30 days for the first violation, 180 days for the second violation, and 1 year for every violation after that.

This past week, however, in Commonwealth v. Cole, the Supreme Judicial Court determined that the statute authorizing CPSL is unconstitutional because it violates the separation of powers doctrine. In Cole, the defendant pled guilty to a sex offense and was classified as a level 2 sex offender. He was required to register with the Sex Offender Registry Board (SORB), and provide SORB with notice of any change of address. The defendant failed to notify SORB that he had moved from Brockton to Taunton and was charged with failure to register. He pled guilty and was sentenced six months probation and CPSL. The defendant completed his probationary term and began his CPSL sentence. Once his CPSL sentence was imposed, the defendant filed a motion to correct his sentence on the ground that he should not have been sentenced to CPSL for several reasons, including the fact that CPSL is unconstitutional under the separation of powers doctrine.

In its decision, the SJC noted that even though CPSL is referred to as “parole,” it is much more similar to probation. Specifically, when a person is on parole, the parole board has the authority to release a person from his committed sentence if the board finds that that person will live and remain at liberty without violating the law and the release is not incompatible with public safety. The board can establish and enforce conditions of parole. If a person violates those conditions, the board has the authority to send him back to jail, but only for the remainder of the original committed sentence – for example, if the person was sentenced to 2 years in prison, was paroled after 1 year, and violated a condition of parole, the board could only send him back to jail for the remaining year left on the sentence – the board does not have the ability to extend the original term of incarceration, and therefore could not order the person to be serve anything beyond the original 2 years. In contrast, with CPSL, the board does have the authority to send a person back to jail for longer than the original sentence, thereby increasing the term of imprisonment and ordering additional incarceration above and beyond what the court originally ordered – as stated above, 30 additional days for the first violation, 180 additional days for the second violation, and an additional year for every violation after that.

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Published on: April 25, 2014

Man Arrested in Hopkinton for Indecent Assault and Battery

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Pennsylvania man who came to Massachusetts to buy a home has been arrested and charged with indecent assault and battery on a person over fourteen. The article states that the man went to an open house at a home in Hopkinton. Upon arrival, he approached the real estate agent, told her she was beautiful, and began to kiss her hand. He then reportedly touched her hair and kissed her face and neck. The agent does not appear to have protested or said no. The Commonwealth alleges that this is because she was scared, did not want to make a scene, and did not want to worry other people that were in the home for the open house. According to the defendant, who made a statement to the police, the agent was flirting with him and was a willing participant. After the encounter, the defendant left the house and the real estate agent called the police, who later arrested him.

For the Commonwealth to prove that the defendant committed an indecent assault and battery on a person over the age of fourteen under G. L. c. 265, § 13H, the prosecution must establish that: (1) the agent was at least fourteen years old at the time of the alleged incident; (2) the defendant committed an assault and battery on the agent (assault and battery is essentially the intentional touching of another person, without some legal justification or excuse); (3) the assault and battery was “indecent,” (an indecent act is one that is fundamentally offensive to contemporary standards of decency – an assault and battery may be considered indecent if it involves touching portions of the anatomy commonly thought to be private, such as the person’s genital area or buttocks, or the breasts of a female); and (4) the agent did not consent to the touching.

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Published on: February 19, 2014

Framingham Man Allegedly Sexually Assaulted Son’s Girlfriend

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man sexually assaulted his son’s girlfriend. The man reportedly shares his apartment with his son and the girlfriend. According to the article, the man went into the bedroom used by his son and the girlfriend. The girlfriend was lying on the bed and the son was in the shower. The girlfriend claimed that after the man entered the room, he rubbed her leg and moved his hand toward her vaginal area. The girlfriend further alleged that she yelled “no,” and that the man told her that he wanted to see her [expletive]. The man then reportedly exposed his penis and left the bedroom. The man was subsequently arrested and charged with: (1) indecent assault and battery; (2) open and gross lewdness; and (3) annoying and accosting a person of the opposite sex.

Although the allegations are serious, there are several reasons why the prosecution may have trouble proving the charges against the man. First, as to the indecent assault and battery charge, the Commonwealth may have trouble proving that the assault was in fact “indecent.” To prove that a person has committed an indecent assault and battery under G. L. c. 265, § 13H, the Commonwealth must prove the following elements: (1) that the alleged victim was at least 14 years old at the time of the alleged offense; (2) that the defendant intentionally touched the alleged victim without legal justification or excuse; (3) that the touching was without the alleged victim’s consent; and (4) that the touching was “indecent,” as that word is commonly understood, measured by common understanding and practices. Specifically, an indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery may be indecent if it involves touching portions of the anatomy commonly thought of as private, such as a person’s genital area or buttocks, or the breasts of a female.

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Published on: September 22, 2013

Worcester Man Accused of Having Sex with Under Age Girls

By Daniel Cappetta

According to an article from MetroWest Daily News, a Worcester man was arrested for having sex with two underage girls – one sixteen and one fourteen – at a Motel 6 in Northborough. Following the arrest, the man was arraigned in the Westborough District Court on September 11, 2013 on charges of: rape, rape of a child under 16, indecent assault and battery on a person over 14, and contributing to the delinquency of a minor.

Prior to the arrest, the police reportedly received information that two girls were working at the motel as prostitutes and went to investigate. During the course of this investigation, the man was arrested. It is unclear whether the police believed that he was involved in the alleged prostitution scheme, was a john, or was involved in some other way. Most likely, the police concluded that the man was a john, as he was not charged with “deriving support from a prostitute,” which is the Massachusetts pimping statute. In court, the prosecutor claimed that the man had lured the girls to the motel with drugs and alcohol, then coerced them into sexual acts, and took pictures of them in various states of nudity. It is unclear whether these photographs were recovered. Further, although a condom was reportedly recovered from the motel room’s trash, it is likewise unclear whether any DNA was recovered from it.

In contrast to the prosecutor’s allegations, the man’s defense attorney emphatically denied the accuracy of the girls’ story, stating that the man was simply letting the girls stay in the room as a favor. The attorney also indicated that the girls represented to the man that they were in their twenties. While the attorney appeared to acknowledge that the man and the older girl did engage in some sort of sexual activity, he also clearly stated that such activity was consensual.

The girls’ allegations are concerning and may have serious consequences for the man. However, it seems as though there are potential weaknesses in the Commonwealth’s version of the events. Although the prosecutor steered clear of referring to the girls as prostitutes, they may well have been engaged in the exchange of sex for some sort of fee – monetary or otherwise – which is a crime under G. L. c. 272, § 8. Given the fact that the police had received information that some sort of prostitution was occurring at the motel, this seems to be the most likely explanation. In the event that this is the case, the Commonwealth may have trouble proving the charges against the man. In particular, the girls may have a 5th Amendment privilege against self-incrimination. Such a privilege means that if the girls’ testimony against the man would result in them incriminating themselves as well, they have a right to refuse to testify. If the case proceeds to Superior Court, the prosecution may choose to grant immunity to the girls in exchange for their testimony against the man – in other words, agree not to prosecute them for any criminal activity if they agree to testify against the man at trial. However, the man would then have a strong argument that the girls were biased or motivated to lie about what really happened so that they could get out from under any criminal charges.

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Published on: September 3, 2013

Woman Reports that Man Indecently Assaulted her in Sudbury Garage

By Daniel Cappetta

A Marlborough man was arrested Friday, August 30th, according to an article in the MetroWest Daily News. The man was reportedly arrested at approximately 4:30pm at his place of employment – Sudbury Automotive – after an 18 year old woman reported that the man pulled his pants down in front of her while she was at the garage. The woman also claimed that the man showed her his underwear and then reached into her skirt and groped her through her underwear. As a result of these allegations, the man was charged with one count of indecent assault and battery.

The man does not appear to have made statements to the police regarding the allegations, and it is unclear what his side of the story is. At his arraignment on September 3rd, however, he pled not guilty and was released on $1500 bail. He is due back in court on October 17th for a pre-trial conference.

To convict the man of indecent assault and battery, the Commonwealth would have to prove three things beyond a reasonable doubt. First, the Commonwealth would have to prove that the man touched the woman without any justification or excuse – in other words, that there was no legitimate reason for the man to have touched the woman. Second, the Commonwealth would have to prove that the man intentionally touched her and that it was not an accident or inadvertent. Third, the Commonwealth would have to prove that the touching was “indecent.” This means that the Commonwealth would have to prove that the man touched the woman in a place that is “commonly understood” to be private, such as a person’s genital area, buttocks, or a woman’s breast(s). G.L. c. 265, § 13H.

The defendant may claim that the alleged incident didn’t happen at all. Whether there is any additional evidence beyond the woman’s allegations remains to be seen. Physical evidence, such as the man’s DNA on the woman’s skirt or underwear, could support her claim. Likewise, whether anyone else witnessed the alleged incident, and whether there were other people in the vicinity at the time the incident allegedly occurred will also likely be a factor in the strength of the Commonwealth’s case. Without physical evidence, other eyewitnesses, or video surveillance, the woman’s allegations might be the only evidence against the man. Whether the prosecution could prove its case could then come down to whether the woman seems credible, or whether she might have had some reason to make up the allegations.

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Published on: January 3, 2013

Cambridge Woman Facing Sex Charges

By Daniel Cappetta

A Cambridge woman is facing one count of sexual conduct for a fee after she allegedly offered to perform a sex act for a fee to an undercover police officer, according to an article in the MetroWest Daily News. Officers reportedly performed a sting operation around 7 p.m. Wednesday, December 12th at the woman’s place of employment, where she worked as a massage therapist, police said.

The woman was released on personal recognizance after being arraigned at Framingham District Court.

Sudbury Police reportedly received an anonymous tip December 6th that the business was listed on a website that lists erotic Asian massage parlors. An officer reportedly made an appointment for 7 p.m. and met the woman. After about fifteen minutes into the massage, the woman and the officer allegedly started talking about a fee. They allegedly negotiated a price for sexual favors. The woman allegedly never stated explicitly what she would do for the negotiated price, but gestured with her hand in a way that the officer reportedly interpreted as being an agreement to perform a sexual act. The officer then reportedly arrested the woman.

The woman has been the only person charged in connection with the business; however, police reportedly stated that the investigation is ongoing.
Officers reportedly seized a laptop and cell phone at the time of the woman’s arrest. The woman’s attorney is reportedly arguing that these items were seized without a warrant and should be returned to his client. However, Judge Greco sided with the prosecution in allowing them to retain the items but ordered then to not search the items without a warrant. The woman’s attorney may have luck trying to get any evidence suppressed that is collected before prosecutors secure a warrant. The woman is due back in court January 15th.

In order to prevail on the sexual conduct for a fee charge, the prosecutors will have to prove beyond a reasonable doubt that the woman either engaged, or agreed to engage, or offered to engage, in sexual conduct with another person; and that the sexual conduct was done, or going to be done, in return for a fee. If convicted of sexual conduct for a fee, the woman is facing the possibility of a jail sentence for up to a year and up to $500 in fines.

The woman is facing serious implications from this charge. A conviction of a sex crime can seriously impede a person’s professional and personal life. Additionally, it can have immigration implications. However, this charge is a misdemeanor charge that she may have an ability to overcome, especially if this is her first time being involved in the criminal justice system. She may have luck trying to get any evidence from the phone and computer suppressed. Additionally, an anonymous tip is a relatively weak piece of evidence for police to bring against a defendant. Also, the woman could argue that she never made any explicit statements or implicated herself in any way that the officer could be certain about. Anyone facing sex crime charges needs a skilled and capable Massachusetts criminal defense lawyer fighting for him or her.

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Published on: March 12, 2012

Marlborough Man Facing Open and Gross Charges In Northborough Arrest Will Be Arraigned Tomorrow

By Daniel Cappetta

According to the Worcester Telegram, today Northborough Police arrested a Marlborough man. The man is charged with Open and Gross Lewdness and will be arraigned tomorrow morning. Because the man was arrested in the town of Northborough he will be arraigned on these charges in the Westborough District Court.

The police allege that Sergeant Brian Griffin was working at the time of the incident and was walking on a trail on Talbot Road in Northborough. As Sergeant Griffin was walking he allegedly saw the man expose himself.

Open and gross lewdness is a sex crime that is a serious charge, and not to be taken lightly. Although open and gross lewdness does not involve any accusation of violence, or intent to harm another physically, it is still a felony charge under Massachusetts law. It carries a maximum penalty of 3 years in state prison if the case is indicted and prosecuted in the Superior Court. If a person is convicted of open and gross lewdness twice he or she will be required to register as a sex offender.

In order for the Commonwealth to prove a defendant is guilty of open and gross lewdness they must prove five distinct elements of the offense. First, it must be shown that the defendant exposed his genitals to one or more people. Second, the exposure must be done intentionally, and cannot be an accident. Third, it must be shown the exposure was done openly, meaning the defendant intended public exposure, or he recklessly disregarded the substantial risk that members of the public would see him. Fourth, that the manner of the exposure was such that it would produce alarm or shock. Fifth, that one or more people were actually alarmed or shocked by the exposure of the genitals.

The fifth element, requiring people actually be shocked or alarmed by the exposure can be a hurdle for prosecutors in certain cases. For example, in the case of Commonwealth v. Kessler the Commonwealth was unable to prove this critical fifth element. During trial in the Kessler case a 13 year old boy and a 10 year old boy testified that they both observed a man masturbating through his unobstructed window. Both boys testified they giggled when they saw the man was masturbating, and that they giggled because they were nervous. One of the boys even testified that he was “offended” by what he saw.

In that case the Supreme Judicial Court (the highest court in Massachusetts) ruled that based on the boys testimony there was not enough evidence for Kessler to be convicted. In deciding the case the Court reviewed a series of past decisions on open and gross lewdness. The Court pointed out that in all the prior cases there were strong statements from the witnesses observing the exposure describing their shock and alarm. The court ruled that the boys statements they were nervous, or even offended was not strong enough for a reasonable juror to conclude that they were shocked or alarmed. As a result Kessler’s conviction was reversed and a finding of not guilty was entered on his case. (You can read the entire decision here.)

What happens next with the Marlborough man’s case will depend on several factors including exactly how the incident was described by the officer who made the arrest, as well as the exact location his alleged behavior was observed, and what if any privacy he might have expected there. There are almost no details in the report from the Telegram, which is not unusual for such a quick media report on an arrest from earlier in the day. Many times open and gross is charged when an individual was urinating in public. If the man was urinating on the trail and reasonably thought no one would see him he may have a strong defense.

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Published on: March 10, 2012

Ashland, Massachusetts Man Charged With Possession of Child Pornography Could Face Enhanced Charges

By Daniel Cappetta

Norman Miller of the MertroWest Daily News reports the story of an Ashland man. According to the article members of the Massachusetts Internet Crimes Against Children Task Force (which usually consists of the State Police working in conjunction with local law enforcement and the Attorney General’s Office) were able to identify child pornography that was being traded on a file sharing network.

The article doesn’t say how the police were able to track down the man, but in the majority of these cases the police are able to obtain the IP address of the person using the file sharing network. Once police have the IP address they either get a search warrant or subpoena for the records of internet service provider associated with the IP address. From the internet service provider they get the subscriber name and address that was using that particular IP address at the time it was observed to be downloading child pornography. From there, all police need to do is get a search warrant for that address and go knock on the door. (as an aside, just a tip to regular readers, make sure to always password protect your wireless router otherwise someone can pirate your wireless signal, if someone does and downloads child pornography you can get an unpleasant knock on your door)

According to the article the police found over 3,000 images and videos of child pornography in the home. Police also indicated they seized 15 different electronic devices, and have not finished searching those items.

As of now, the man is charged with possession of child pornography. Possession of child pornography is certainly a serious charge in and of itself. The maximum penalty for possession of child pornography in Massachusetts is 5 years in state prison. Any conviction for possession of child pornography requires the defendant to register as a sex offender, regardless of whether or not he or she is sentenced to jail time.

As serious as the man’s case is already, he will face significantly increased penalties if prosecutors bring new charges of dissemination of child pornography. The article state prosecutors may pursue the dissemination charge because the man admitted that others had downloaded some of the images remotely from his computer. Any defendant convicted of dissemination of child pornography faces a minimum sentence of 10 years in state prison and can be sentenced to as many as 20 years in state prison. In addition there is also a requirement that the defendant register as a sex offender.

In cases like these often times the most important question in the case relates to the police procedure used in the investigation. Prosecutors must show a court that the police followed proper procedures in obtaining information and searching the man’s home. If the man’s constitutional rights were violated in the search of his home there is potential the evidence against him could be suppressed.

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