Articles Posted in Sex Offenses

Recently, a court of appeals in Massachusetts had to decide whether it agreed with a criminal defendant’s argument that he had been deprived of effective assistance of counsel during his trial. Originally, the defendant was charged with assault and battery on a child under the age of fourteen. A trial court found him guilty, and he promptly appealed the verdict.

Facts of the Case

According to the opinion, investigators in this case became suspicious that the defendant had been improperly communicating with and potentially abusing minors. The victim had written in her diary about incidents of sexual abuse from her dad, who later became the defendant in this case. To figure out if the allegations against the defendant were accurate, investigators retrieved a search warrant from the court and went to look in the defendant’s apartment. While looking around, the investigators found a cell phone with several photos of the child in the nude.

The defendant was charged with several crimes, including assault and battery of a child, posing a child in the nude, and attempting to pose a child in the nude. He was later convicted at trial.

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In a recent case coming out of a Massachusetts court, the defendant lost his appeal challenging convictions of two counts of rape. The defendant’s argument centered around the jury selection process prior to his trial; according to the defendant, several of the jurors were too biased to be fair and impartial deciders in his case. The court of appeals disagreed and affirmed the defendant’s original convictions.

Facts of the Case

According to the opinion, the defendant was charged with rape after his DNA was found to match with semen that had been recovered from a victim in 2009. Between 2009 and this identification, the victim had not known who had assaulted her, but after the discovery, the defendant was located and brought forward for trial.

Before the trial began, the court conducted a standard process in which it allowed each attorney to object to potential jury members that they thought would be unfit to decide the case. On the second day of this jury selection, the judge asked prospective jurors two questions: (1) whether they thought false accusations of sexual assault were rare or infrequent, and (2) whether someone who comes forward claiming sexual assault must be telling the truth, if she has put herself through the process of indicating a sexual assault occurred.

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In a recent case coming out of a Massachusetts court, the defendant was found guilty of failing to register as a sex offender. Originally, the judge in the defendant’s case proposed a sentence of one to two years in prison; however, in response to this proposal, the higher court in Massachusetts issued an opinion stating that the mandatory minimum sentence for defendants convicted of this crime is five years in prison.

Facts of the Case

According to the opinion, the defendant in this case was convicted of rape in 2008. As a result, he was required to register as a sex offender in the Commonwealth of Massachusetts. Because he failed to meet this requirement, the defendant was charged with two counts of failure to register as a sex offender. He pleaded guilty to both counts.

The judge in the defendant’s case sentenced the defendant to two years of probation on the first count. On the second count, the judge declared that he was going to sentence the defendant to one to two years in prison. This second sentence, though, was dependent on the answer to a question that the judge had posed to a higher court in the Commonwealth. According to the judge involved in the defendant’s case, it was unclear under Massachusetts law whether or not a person convicted of failure to register as a sex offender can be sentenced to fewer than five years in prison. It was ambiguous whether the law stated that these offenders, in particular, must be sentenced to at least five years in prison, and the judge needed the higher court to clarify the rule before he could make a final decision on the defendant’s case.

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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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