Articles Posted in Sex Offenses

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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.

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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.

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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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The Appeals Court of Massachusetts seated in Suffolk County handed down a decision earlier this year regarding a defendant who had been unlawfully indicted on a charge which the prosecution had not fully proven.In the case, Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267 (2013), following a jury trial in Superior Court, the defendant was found guilty of rape aggravated by kidnapping; kidnapping aggravated by sexual assault; and indecent assault and battery. The judge sentenced him on the aggravated rape and indecent assault and battery charges, and placed the indictment for aggravated kidnapping on file, to which the defendant objected. The defendant’s appeal centered on the filed indictment. He argued that, the jury instruction setting forth the elements of aggravated kidnapping was erroneous.

Under the relevant portion of the statute, “[w]hoever commits any offense described in this section [the crime of kidnapping] while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person…” shall be found guilty of the crime. [emphasis added by court].
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In the wake of the Penn State/Sandusky scandal, a Taunton High School teacher has been accused of having sex with two female students. Patrick Doyle, a history teacher, now faces charges of statutory rape and aggravated statutory rape of a child. NECN reports that the Doyle was indicted on twelve charges arising from the two incidents, and is currently being held without bail. A dangerousness hearing has been set for Doyle sometime next week. If convicted of these charges, Doyle faces a 10-year to life sentence in prison. Allegations of sex crimes are serious and should not be taken lightly. A conviction for a sexual offense in Massachusetts carries significant penalties of imprisonment and may confine an offender to a lifetime on the sex offender registry.

Earlier this year, two Newton men were arrested for possession and distribution of child pornography. The arrests were made in the same week during January 2012, although there does not appear to be a connection between the two men. Peter Buchanan, a 10-year city employee and Dave Ettlinger, an elementary teacher, both face serious charges stemming from the arrests. Dave Ettlinger was arrested in January 2012 for his participation in the child pornography website called Dreamboard, which requires members to post images of child pornography in order to keep their membership active. Ultimately, Ettlinger was charged with indecently assaulting three females and taping it. The arrest resulted from an international investigation of the website. A June 28th article by the Boston Globe proclaims that Ettlinger may plead guilty to the federal charges stemming from his role in the global child pornography network, although a plea has not yet been entered. If found guilty, Ettlinger faces imprisonment for 20 years to life under 18 USC §2252A. Upon the conclusion of the case, Ettlinger must return to Massachusetts to face state charges for the indecent assault on three females.
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Failing to Register as a sex offender pursuant to G.L. c.6, s. 178H can result in severe consequences to the individual that must register in accordance with the law. A strong and aggressive defense by an experienced Boston criminal defense lawyer is necessary when a complaint for failure to register is brought against a defendant.

The possibility of long sentences followed by lifetime community parole show how important it is to hire a Massachusetts criminal defense attorney to vigorously defend such cases rather than settle for plea opportunities made by the prosecutor. Cases such as Commonwealth v. Ramirez, 69 Mass. App.Ct. 9 (2007) and Commonwealth v. Bolling, 72 Mass. App. Ct. 618 (2008) show how important it is to have an experienced attorney present a strong defense on behalf of the client.

To prove that the defendant committed the offense of failing to register as a sex offender the Commonwealth must prove beyond a reasonable doubt each of the following four elements:

First: that the defendant either resided or intended to reside in Massachusetts or worked or intended to work in Massachusetts;

Second: that the defendant was previously convicted of the offense of that required him or her to register as a sex offender;

Third: that the defendant knew that he or she was required to register or verify registration data or notify of a change of address with the Sex Offender Registry Board; and
Fourth: that the defendant failed to register or failed to verify registration data or notify of a change of address or provided false information to the Sex Offender Registry Board.
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