Judge Dont keep sex offender in prison

11-14-2010 Massachusetts:

Feeley says exhibitionist is not dangerous because crime 'not one of sexual violence'

SALEM — Like most other states, Massachusetts has a law aimed at keeping dangerous sex offenders deemed likely to commit new crimes off the streets.

But should that law allowing judges to keep "sexually dangerous persons" in custody after they complete their sentences include people like Donald Sauve, a chronic exhibitionist convicted repeatedly of masturbating in public but not for any violent crime?

Earlier this month, a Salem Superior Court judge said it should not.

On Nov. 4, Judge Timothy Feeley granted a motion by Sauve's lawyer to dismiss the civil commitment petition filed by prosecutors, saying it violates Sauve's due process rights under the Constitution.

Feeley found that while Sauve met the definition of a "sexually dangerous person" under the state law, that law, amended in 2004 to include nonviolent offenses like Sauve's, is unconstitutional.

"Although the Legislature has defined sexual offenses to include open and gross lewdness, the crime is not one of sexual violence," Feeley wrote in a 29-page decision. "It also, in this court's view, does not present dangerousness to the public in the same sense as contact/violent sexual offenses such as indecent assault and battery and rape."

Prosecutors in Essex County District Attorney Jonathan Blodgett's office are appealing and plan to file a motion to stay Sauve's release from a state prison hospital, which is scheduled for Monday, pending the outcome of that appeal.

Sauve's lawyer, Will Korman, said that appeal is likely to test the constitutionality of that 2004 amendment to the state's law and answer the question of just how far courts can go in keeping certain offenders locked up after their sentences.

Beyond that, Korman said, the case raises questions about how to best use public resources.

"Does the taxpayer need to spend money to incarcerate him, potentially for the rest of his life, for exhibitionism?" Korman said.

Sauve, 53, is a machinist by trade, who grew up in Salem, lived in Peabody during his marriage and then lived in Beverly before his most recent sentence.

He has a record of exposing himself and masturbating dating back nearly 25 years.

While he has been convicted seven times for either open and gross lewdness or indecent exposure, he admitted to a psychologist evaluating him for the commitment proceeding that he'd done it some 20 to 30 times over the course of his lifetime.

His most recent offense was in 2004, when he was arrested at Devereux Beach in Marblehead for exposing himself to two middle-aged women and masturbating. At the time, he was on probation for a 2000 offense at the Beach Club in Swampscott, where he did the same thing in front of two teenage employees as they walked past the locker room.

After serving a jail term in the 2004 case, Sauve was released, then sent back to prison for three years after cutting off his GPS ankle bracelet and other probation violations in 2007.

He was scheduled to be released this year, until prosecutors filed their request to have him deemed a sexually dangerous person.

Sauve was also convicted of an incident in 2004 in which he sat on a bench along a bike path on the Charles River, pantless and, by his own admission, masturbating.

Other convictions came after incidents in 1986 and 1990 in Marblehead, incidents in 1991 in Salem and Peabody and a 1999 incident in Malden.

Yet, "None of his offenses, as far as the record discloses, involved stalking, luring, approaching, confining or touching a victim," wrote Feeley, who presided over a civil trial on the district attorney's request last month.

The judge acknowledged that Sauve's exhibitionism makes it likely that he will re-offend, and that his conduct does cause harm in that it creates "significant negative emotions" to others.

But the judge then turned to a U.S. Supreme Court decision in the case of Kansas vs. Hendricks.

The court, in a decision written by Justice Clarence Thomas, held that the Kansas law, which covered "violent, contact sexual offenses," is constitutional because the need to protect society from a relatively small number of violent offenders overrides concerns about a person's right to due process.

But it didn't address nonviolent offenders like Sauve, Feeley wrote.

"Throughout the Hendricks opinion," Feeley wrote, "the court refers to the requirement of dangerousness and dangerous behavior. ... In this court's view, the Hendricks court would not have upheld a statute that permitted an open and gross conviction to commence a (sexually dangerous person) proceeding."

"We disagree, and we will fight to keep him in custody for the duration of the appeal," said Steve O'Connell, a spokesman for Blodgett. ..Source.. by Julie Manganis, Staff writer The Salem News

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