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Articles Posted in Sex Offenses

Recently, a state appellate court issued an opinion affirming a lower court’s decision not to reduce a defendant’s bail as he awaits trial for several Massachusetts sex offenses, including indecent assault and battery on a person age fourteen or older. The case highlights the challenges many defendants face—even during the COVID-19 pandemic—when trying to secure pretrial release.

Under state and federal law, courts must only consider certain factors when setting a defendant’s bail. In general, bail should not be a punishment to keep someone incarcerated while they await trial. Instead, bail should be used to secure their presence at trial. When determining what amount of bail is appropriate, courts consider the following factors:

  • The nature of the offense;

Under Massachusetts’ law, individuals convicted of sex offenses may need to provide identifying information to a state reporting agency, commonly referred to as the “sex offender registry.” Lawmakers maintain that the Massachusetts Sex Offender Registry assists their agency with identifying sex offenders and reducing the likelihood of recidivism. After conviction and during sentencing, these individuals will receive a classification level, depending on their crime, dangerousness, and likelihood of re-offense.

The most common crimes requiring sex offender registration are battery, rape, indecent assault, assault with the intent to commit rape, kidnapping, drugging a person for sexual intercourse, inducing a minor into pornography, prostitution, and sex trafficking. Under Massachusetts’s law, convicted sex offenders must register with the Massachusetts registry if they live, work, or attend school in the state. Additionally, the law requires that these individuals update their information if they have a secondary address in the state, are moving to the state, become homeless, work in Massachusetts, or live in another state, but attend school in Massachusetts.

The registry requires these individuals to report their full legal name, any aliases, home addresses, and work addresses. Work addresses include all forms of employment, including part-time and volunteer work. The registrant must include their physical characteristics, including height, weight, eye and hair color, and identifying marks. Higher-level registrants must include fingerprints and photographs. Those convicted of federal sex offenses may need to register through the state and National Sex Offender Registry.

The Massachusetts Supreme Judicial Court recently issued an opinion in a defendant’s appeal regarding a violation of probation case. According to the court’s opinion, in 2015, the defendant pleaded guilty to battery on a child under fourteen, indecent assault, and child pornography possession. A judge sentenced the defendant to five years of probation. Under the terms of the probation, the defendant was registered as a level three sex offender under the Sexual Offender Registry Board (SORB), his location was to be monitored by GPS, he was prohibited from having contact with the victim, and he was prohibited from “working, volunteering, or residing” with children under 16 years old.

Evidently, the defendant was a self-employed home-improvement contractor, specializing in repairs of old homes. For more than thirty years, the defendant operated his business out of his home workshop. Per SORB requirements, the defendant filled out and submitted identifying information in 2015 and 2017, indicating that he was self-employed and listing his home address as his employment address. The defendant had the same probation officer for three years, and at no point did anyone advise the defendant to list all of his clients’ addresses as his “employer address.”

During this time, the defendant performed window restoration work at a client’s home. He removed the windows and did the majority of the work at his home workshop. At the time of the incident, the family did not have any children. Shortly after this job was complete, the family had a baby and hired the defendant to perform other home repairs. Over several months, the defendant performed work for the family; but he did not have any contact with the baby. On one occasion, a police officer stopped the man in a shopping plaza when he was on his way from the client’s home. The officer contacted his probation officer to determine whether the defendant registered his work address in the county of the client’s home—which he did not. The defendant was subsequently charged with a probation violation.

Jury selection in a Massachusetts criminal trial is a critical stage in any case. Because a defendant cannot be convicted unless a jury must unanimously find that a defendant was guilty of the crime charged, both prosecution and defense put a significant amount of effort into selecting jurors through a process called “voir dire.”

The voir dire process is guided largely by the judge overseeing the case. Generally, each side presents questions that they would like to ask potential jurors. The judge can approve or disapprove of specific questions, and may alter the phrasing on certain questions. Some judges allow counsel to ask the questions, while other judges ask the potential jurors the questions themselves. Of course, judges must follow certain statutory and constitutional principles during the process.

In a recent state appellate decision, the court affirmed the conviction of a defendant who was found guilty of indecent assault and battery, rejecting the defendant’s challenge to the lower court’s decision not to allow him to ask certain questions of the jury. Specifically, the defendant wanted to ask the jurors whether they had a bias against non-English speakers.

One of the most significant and burdensome collateral consequences of a Massachusetts sex offense conviction is the mandatory reporting requirement. After a conviction for a qualifying offense, the Sex Offender Registration Board (SORB), will classify the defendant as either “low,” “moderate,” or “high” risk, each carrying a different set of registration and reporting obligations. Recently, a state appellate court reviewed one man’s challenge to the SORB’s classification that he was a level two, moderate risk offender.

According to the court’s opinion, in 2015, the man was convicted of two counts of open and gross lewdness. Evidently, the man displayed his genitals to a neighbor through a window in his home. After his conviction, SORB classified the man as a level two, moderate risk offender. The defendant challenged the SORB determination.

First, the man claimed that SORB did not have the authority to label him a sex offender because his conviction did not qualify. Specifically, the man argued that a previous arrest for open and gross lewdness did not result in a “conviction.” Second, the man argued that SORB presented insufficient evidence to classify him as a level two offender.

Last month, a state appellate court issued a written opinion in a Massachusetts sex trafficking case discussing whether the lower court could compel the defendant to enter a password so that the prosecution could execute a search warrant that was obtained for the defendant’s cell phone. Ultimately, the court concluded that the defendant could be compelled to enter the password and that it was not a violation of his right to be free from self-incrimination.

According to the court’s opinion, the defendant was arrested on suspicion of sex trafficking. When he was arrested, the defendant had two cellular phones with him. The prosecution’s evidence suggested that the defendant used the phone to communicate with several women. The prosecution successfully obtained a warrant to search the contents of the phone. However, the phone was encrypted, and the prosecution did not have the technology necessary to unlock the phone. Thus, the prosecution sought to compel the defendant to unlock the phone. The defendant claimed that requiring him to enter the password would require he incriminate himself.

The lower court denied the prosecution’s request to compel the defendant to enter the password, and the prosecution appealed.

Judges have a variety of roles in a Massachusetts criminal trial. One of the primary functions of a judge is to decide what evidence is admissible throughout the trial. Often, these issues are litigated before the trial begins in a motion in limine. However, it is also common for judges to make spur-of-the-moment decisions regarding the admissibility of evidence during a trial.

At the conclusion of the evidence, a judge is responsible for instructing the jury on the applicable law. The jury’s role is to consider the evidence and take into account the instructions provided by the judge, ultimately coming to a conclusion regarding whether the prosecution has proven that the defendant was guilty beyond a reasonable doubt.

Judges are human, and as a result, will frequently make mistakes during a trial. It is crucial for a Massachusetts criminal defense attorney to pay close attention to a judge’s rulings during a trial because these errors can be the basis of an appeal. However, not every error a judge makes during a trial will result in the reversal of a guilty verdict.

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Earlier this month, a state appellate court issued an opinion in a Massachusetts sex crime case, finding that the jury’s verdict was based on insufficient evidence. The court determined that a hug given to the complainant by the defendant was not “indecent” in nature, and thus, the Commonwealth’s evidence was insufficient to support the indecent assault charge.

The Facts of the Case

The complainant was a 13-year-old girl who was interning at an aviation company. One day, the defendant, a 60-year-old man, approached the complainant, whom he had previously met at the airport, and told her he would like to get her a gift for her upcoming birthday. He also told her that he would like to give her a hug in another room. The complainant went into the hallway and waited, but she returned to work a few minutes later when the defendant never showed up. Later, the complainant ran into the defendant and offered him a hug.

A little later that day, the defendant asked if the complainant wanted another hug. This time, the defendant led the complainant into a private room, gave her a hug, and kissed her on the cheek. The complainant testified that she was not initially alarmed because it seemed like a common greeting for someone of “European descent.”

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In a recent Massachusetts appellate case, the defendant appealed from a conviction for possessing child pornography. The case arose in 2009 when a State police sergeant used a peer-to-peer software client to investigate the use of a file-sharing network to possess and distribute child pornography. While connected, the sergeant saw that a computer in Massachusetts was sharing what he suspected were child pornography files.

The sergeant got a list of 7,237 files that the computer showed were available for sharing. Most of the file names included terms that the sergeant knew were associated with child pornography, and one included an attribute that provided a unique identifier for one that the sergeant had previously examined and believed contained child pornography.

The police subpoenaed the Internet service provider and found the street address associated with the IP address. A registry of motor vehicles records showed that the subscriber and defendant lived at the address. A warrant was obtained to search the premises for a computer that used LimeWire and for materials that were associated with possession of child pornography. The warrant was executed. The subscriber owned the house, and the defendant was the subscriber’s wife’s cousin, who lived in the attic.

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Recently, a 46-year-old Uber driver was accused of sexually assaulting a passenger in Boston. Uber customers use an app to arrange and pay for rides with drivers who are nearby. The driver pled not guilty to all charges, which included rape and kidnapping. The incident allegedly occurred on December 6, when the woman called an Uber car to take her home after a night spent with friends.

Once the woman was in the car, the driver allegedly said she would need to pay with cash and drove her to an ATM. Once she returned to the car, he drove to a secluded area, jumped into the back seat, and allegedly struck, strangled, and sexually assaulted her. Boston police have stated that they are investigating three other indecent assault allegations related to women using ride-for-hire services.

Rape is a felony charge described in Massachusetts General Laws Chapter 265 Section 22(b). It is taken very seriously in Massachusetts. To secure a conviction in a rape case, the Commonwealth will need to prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with the alleged victim and that the defendant used force or otherwise compelled the victim to submit against his or her will. “Sexual intercourse” means that there was penetration, but it doesn’t have to be significant. Even finger penetration or the use of a foreign object can satisfy this requirement. “Force” is usually defined as a threat of bodily injury, but it doesn’t always mean physical force. Sexual assault, in contrast to rape, is more broadly defined as any sexual activity that is coerced, forced, or unwanted.
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