Prosecutions Pursuant to G.L. c. 123A
“Care, Treatment and Rehabilitation of
Sexually Dangerous Persons”
Number of SDP cases
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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Petitions withdrawn or dismissed – 51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statute was repealed in 1989.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.
1994 - 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?