S.J.C. Denies Sex Offender Seeking Reclassification

On 5/3/2010 the Supreme Judicial court ruled on the reclassification of a registered sex offender for his out of state offense in JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 151564 vs. SEX OFFENDER REGISTRY BOARD. 456 Mass. 612 (2010).

The court in reviewing the facts stated “After the Sex Offender Registry Board (board) classified John Doe as a level three sex offender, a judge in the Superior Court ruled that Doe is not required to register as a sex offender because his conviction in Maine of unlawful sexual contact, see Me. Rev. Stat. Ann. tit. 17-A, § 255(1)(C) (West Supp. 2000),  is not a “like violation” similar to any Massachusetts statute that requires such registration in the event of a conviction. See G. L. c. 6, §§ 178C-178P. We reverse the ruling because we conclude that Maine’s offense of unlawful sexual conduct is a “like violation” when compared to the Massachusetts crime of indecent assault and battery on a child under fourteen. See G. L. c. 265, § 13B. Nonetheless, because of errors in the board’s decision we remand the case to the board for new classification proceedings and for a determination whether Doe is entitled to funds for an expert.

Whether Doe is a sex offender subject to the board’s jurisdiction. A sex offender is defined as a person who has been convicted of any violation of Massachusetts law enumerated as a sex offense in the sex offender registry law, as well as any “like violation of the laws of another [jurisdiction].” G. L. c. 6, § 178C. Any sex offender moving into the Commonwealth from another state must register with the board within two days. See G. L. c. 6, § 178E (g).

a. Definition of “like violation.” The board argues that the motion judge erred in determining that Doe’s Maine conviction does not constitute a “like violation” within the meaning of G. L. c. 6, § 178C. The sex offender registration statute does not define the term “like violation,” nor have we previously interpreted the “like violation” provision. In Commonwealth v. Becker, 71 Mass. App. Ct. 81, 82, cert. denied, 129 S. Ct. 320 (2008), the Appeals Court addressed whether a conviction of the New York offense of sexual abuse in the third degree is a “like violation” similar to the Massachusetts offense of indecent assault and battery on a person fourteen or older. See G. L. c. 265, § 13H. The court defined a “like violation” as a crime that is “the same or nearly the same” as a Massachusetts offense requiring registration. Id. at 87, quoting Commonwealth v. Smith, 58 Mass. App. Ct. 166, 172 (2003), rev’d on other grounds, 543 U.S. 462 (2005). In applying this definition, the court compared the definition of the New York offense with the definition of the Massachusetts offense and concluded that the essence of the two crimes was the same. Commonwealth v. Becker,supra.

The Appeals Court analysis was correct. A “like violation” is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts. The elements of the offense in  another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a “like violation.” In drafting the statute, the Legislature chose the word “like” rather than the word “identical” to describe the required relationship between an offense from another jurisdiction and a Massachusetts sex offense. Where a statute does not define a term, we interpret it “in accordance with its generally accepted plain meaning.”Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). Therefore, we consider the “like violation” requirement satisfied where it is shown that the proof necessary for the out-of-State conviction would also warrant a conviction of a Massachusetts offense for which registration is required.

Doe’s Maine conviction of unlawful sexual contact. General Laws c. 265, § 13B, prohibits “indecent assault and battery on a child under the age of fourteen.” Any intentional touching that is “harmful or offensive” and “committed without justification or excuse” constitutes battery, see Massachusetts Superior Court Criminal Practice Jury Instructions § 2.21.1 (Mass. Cont. Legal Educ. 1st Supp. 2003), and all battery includes assault. See Commonwealth v.Burke, 390 Mass. 480, 482 (1983). An assault and battery is indecent if it is “fundamentally offensive to contemporary standards of decency and moral values.” See Commonwealth v. Trowbridge, 419 Mass. 750, 757-758 (1995). See also Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 570-571 (2006). The intentional, unjustified touching of the breasts, abdomen, buttocks, thighs, or pubic area of a female constitutes indecent assault and battery. Id. at 571. Accordingly, the elements of the Massachusetts crime of indecent assault and battery on a child under fourteen are an intentional touching (1) that is harmful or offensive and committed without justification or excuse; (2) that is indecent (i.e., that offends contemporary standards of decency and moral values); and (3) that is committed on a child under the age of fourteen. See G. L. c. 265, § 13B; Commonwealth v. Trowbridge, supra; Commonwealth v.Boyd, 73 Mass. App. Ct. 190, 194 (2008).

Maine’s unlawful sexual contact statute prohibits “intentional[] . . . sexual contact” with “[an]other person, not the actor’s spouse, [who] has not in fact attained the age of 14 years” when the actor is “at least 3 years older” than the victim. Me. Rev. Stat. Ann. tit. 17-A, § 255(1)(C). Sexual contact is defined *617 as “any touching of the genitals or anus . . . for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.” Me. Rev. Stat. Ann. tit. 17-A, § 251(1)(D) (West Supp. 2000). Thus, the elements of Maine’s offense of unlawful sexual contact are an intentional touching (1) for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact; (2) of the genitals or anus; (3) of a person under the age of fourteen; (4) by a person at least three years older than the victim and not the victim’s spouse.

The Superior Court judge decided that Doe’s Maine conviction was not a “like violation” because the judge believed that the Massachusetts offense includes elements that are not required to prove the Maine offense. The judge concluded, in our view erroneously, that the Massachusetts statute requires that the Commonwealth prove two elements not required by the Maine statute: (1) that both an assault and a battery occurred, whereas in Maine the statute requires only the element of assault; and (2) the additional element that the crime was offensive to contemporary moral values.

We read the Maine statute as requiring proof of both an assault and a battery because it prohibits intentional touching. Me. Rev. Stat. Ann. tit. 17-A, § 255(1). The elements of the Maine offense of unlawful sexual contact and the Massachusetts offense of indecent assault and battery on a child under fourteen are essentially the same. Both crimes require that the touching be intentional and that the victim be under the age of fourteen. The two statutes differ only in the character of the prohibited touching. Massachusetts prohibits indecent touching (defined as any touching offensive to contemporary moral values) whereas Maine prohibits sexual contact (defined as the touching of the genitals or anus for the purpose of sexual gratification or arousal, causing bodily injury, or causing offensive bodily contact). However, these differing statutory formulations prohibit essentially the same conduct. The intentional, unjustified touching of the genitals or anus is considered indecent under Massachusetts law, regardless of the actor’s purpose. Commonwealth v. Miozza, supra at 571. Thus, any act that qualifies as sexual conduct under the Maine statute would qualify as indecent under the Massachusetts statute.”

Commentary

There is alot going on in this case, but its a good illustration of the reciprocation for sex offender classifications that Massachusetts conducts.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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