Prosecutions Pursuant to G.L. c. 123A “Care, Treatment and Rehabilitation of Sexually Dangerous Persons”

Number of SDP cases Referrals (November 1999 to date) - 2,132 Petitions filed – 114 No probable cause found - 2 Respondents found SDP – 35 Respondents found not SDP – 22 Petitions withdrawn or dismissed – 51 Cases pending - 4

G.L. c. 123A Enacted by emergency legislation on September 10, 1999, St. 1999, c. 74, §§ 3–8. Amendments provide a one-day-to-life commitment of a person found to be a “sexually dangerous person.” The amendments set out a new definition of a “sexually dangerous person” and also add five new sections to the statute which set out the procedures for adjudicating a person as “sexually dangerous.” Amendments were enacted to protect members of the community from sex offenders, as the prior statute was repealed in 1989.

General Laws c. 123A requires the Commonwealth to prove beyond a reasonable doubt that the defendant: (1) has been convicted of a “sexual offense” as defined by G.L. c. 123A, § 1; (2) suffers from a mental abnormality or personality disorder; and, as a consequence of which (3) is likely to commit sexual offenses if not confined to a secure treatment facility. See Commonwealth v. Fay, 467 Mass. 574, 580 (2014); Commonwealth v. Boucher, 438 Mass. 274, 275 (2002).

Definition of “Sexually dangerous person” G.L. c. 123A, § 1 (i) Any person who has been convicted of or adjudicated a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility;

G.L. c. 123A, § 1 (ii) Any person who has been charged with a sexual offense and determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility;

G.L. c. 123A, § 1 (iii) Any person who has been previously adjudicated as such by a court of the Commonwealth and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.

Definition of “Mental abnormality” G.L. c. 123A, § 1 “[A] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.”

Definition of “Personality disorder” G.L. c. 123A, § 1 “[A] congenital or acquired physical condition or mental condition that results in a general lack of power to control sexual impulses.”

Definition of “Sexual offense” G.L. c. 123A, § 1 “Sexual offense” includes a number of crimes, such as indecent assault and battery on a child under 14, indecent assault and battery on a mentally retarded person, rape, rape of a child, kidnapping, enticing a person for prostitution or sexual intercourse, drugging a person for sexual intercourse, inducing a person under 18 into prostitution, open and gross lewdness and lascivious behavior, dissemination of matter harmful to a minor to a minor, posing a child in a state of nudity, and possession of child pornography.

How cases come to the attention of the District Attorney’s Office G.L. c. 123A, § 12(a), (b) The District Attorney’s Office receives notice from the DOC, HOC, and Parole Board six months before an inmate who has been convicted of a sexual offense is due to be released. The Office reviews materials to determine if the inmate is “likely” a SDP. If so, a petition is filed in Superior Court setting out sufficient facts to support the allegation.

Meaning of “likely” “‘Likely’ is not defined in G.L. c. 123A, nor is it understood to be a term of art requiring a specific and limited interpretation.... We conclude that something is ‘likely’ if it is reasonably to be expected in the context of the particular facts and circumstances at hand.” Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).

Definition of “Qualified examiner” G.L. c. 123A, § 1 “[A] physician who is licensed pursuant to section 2 of c. 112 who is either certified in psychiatry by the American Board of Psychiatry and Neurology or eligible to be so certified, or a psychologist who is licensed pursuant to sections 118 to 129, inclusive, of c. 112; provided, however, that the examiner has had two years of experience with diagnosis or treatment of sexually aggressive offenders and is designated by the commissioner of correction. A ‘qualified examiner’ need not be an employee of the department of correction or of any facility or institution of the department.”

Case evaluation In trying to ascertain whether an individual is “likely” a SDP, the Office reviews the following: – Facts of the sexual offense crime – Any sex offender treatment records – Risk factors – Protective factors – Any disciplinary reports of the inmate while incarcerated – Inmate’s version of the sexual offense crime

Probable cause hearing G.L. c. 123A, § 12(c), (d) The inmate is entitled to a probable cause hearing to determine whether the petition should go forward. The hearing is held before a Justice of the Superior Court. If the probable cause hearing is scheduled after the inmate’s scheduled release date, the court may order the inmate to be temporarily committed to the Mass. Treatment Center pending the determination of probable cause.

Probable cause hearing G.L. c. 123A, § 12(d) At the probable cause hearing, the person named in the petition has the right to be represented by counsel, to present evidence, to cross-examine witnesses, and to view and copy all petitions and reports in the court file.

Temporary commitment to the Mass. Treatment Center for evaluation G.L. c. 123A, § 13 If the court finds that there is probable cause that the person named in the petition is a SDP, he is committed to the Mass. Treatment Center for a period of up to 60 days for examination and diagnosis. Two “Qualified examiners” are appointed for this purpose. The person named in the petition has a right to counsel; counsel is appointed for indigent persons. The person named in the petition may retain his own expert(s).

SDP Trial G.L. c. 123A, § 14 If one or both of the Qualified Examiners find that the person named in the petition is a SDP the Commonwealth may file a petition for trial. The person named in the petition is entitled to counsel (appointed for indigent persons), and to retain experts. The trial may be before a judge or a jury. A jury must find “unanimously and beyond a reasonable doubt that the person named in the petition is a sexually dangerous person.” Commitment is to the Mass. Treatment Center for one day to life until discharged pursuant to section 9.

Appeal after SDP finding A person found to be a SDP may appeal. The appellate court applies the following standard of review: “On a sufficiency of the evidence claim following a finding that the defendant is an SDP, [the Court] inquire[s] whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G.L. c. 123A, § 1.” Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J., concurring).

Petition pursuant to G.L. c. 123A, § 9 A person committed to the Mass. Treatment Center is entitled to file a petition for examination and discharge once every 12 months. The DOC may file a discharge petition at any time if it believes a person is no longer a sexually dangerous person. A petitioner has the right to a speedy hearing before a Justice of the Superior Court. He is examined by two Qualified Examiners. Unless the trier of fact finds that such person remains a SDP, it “shall order such person to be discharged from the treatment center.”

Recent SDP case Commonwealth v. Cahoon, 86 Mass. App. Ct. 266 (2014). SDP judgment affirmed. Background: 1992 – Defendant convicted of one count of rape of a child and indecent assault and battery on a child under 14. Victim was his girlfriend’s 3½ daughter Conviction affirmed. Case summary from appeal: “The victim testified that the defendant ‘did bad stuff’ to her, and she described the various acts which the defendant performed, including placing his penis in the victim’s mouth and her ‘private,’ as well as in her ‘butt.’ Several witnesses testified to fresh complaints made by the victim. Medical evidence at trial included a description of a healed rectal scar which was termed very, very unusual,’ corroborating the victim’s testimony. The defendant’s theory [was] that the victim had been abused by other persons living from time to time in the household.”

After a trial, the defendant was found SDP. On appeal, he argued that the evidence was insufficient to show that he was at risk of reoffending in a sexual manner. The Court held that there was ample evidence that the defendant (1) was convicted of the sexual offenses of rape and indecent assault and battery on a child; (2) suffered from a mental abnormality or personality disorder, based on the testimony of the Commonwealth’s experts—a forensic psychologist and a qualified examiner—that he fit the criteria for having an antisocial personality disorder (which opinion was also shared by three of his four experts), and the opinion of one expert that he suffered from nonexclusive pedophilia;

and (3) that his mental abnormality or personality disorder made him likely to engage in sexual offenses if not confined to a secure facility. The Commonwealth’s experts opined that he was likely to reoffend sexually based on a number of considerations, including that he manifested deviant arousal, did not complete sex offender therapy, would not be on probation if released, was of a young age and scored in the moderate-to-high risk category on a risk assessment test.

Recent SDP case Commonwealth v. Johnstone, 453 Mass. 544 (2009). Dismissal of SDP proceedings affirmed. Johnstone served a 10-year prison sentence for sex offenses he committed in 1990 and 1991 and was subsequently committed as a SDP. He filed a petition seeking discharge from the commitment pursuant to § 9. As required by § 9, he was examined by two Qualified Examiners and each concluded that he was no longer sexually dangerous. The case proceeded to trial—the Commonwealth presented other evidence that Johnstone was sexually dangerous. The Court rules that the Commonwealth cannot proceed to trial when both Qualified Examiners opine that the person in question is not sexually dangerous, whether in a discharge proceeding pursuant to G.L. c. 123A, § 9, or in initial commitment proceedings pursuant to § 12(b).

Questions?