SJC broadens law on noncontact lewd behavior

3-22-2014 Massachusetts:

The state’s highest court ruled Friday that offenders who commit lewd acts without physically contacting their victims can nonetheless be declared sexually dangerous and continue to be imprisoned after their sentence has been served, broadening the reach of the state’s sexual offender law.

The unanimous Supreme Judicial Court decision upheld a 2012 ruling declaring Harold Fay a sexually dangerous person, even though his six convictions for sexual offenses did not involve direct physical contact with his victims.

The court ruled that Fay’s sexual misconduct put his victims in fear that they would be subjected to a physical sexual offense, justifying his commitment to a treatment center.

“Protecting children from exposure to such conduct by persons suffering from a mental disorder who, as a consequence, are likely to engage in the conduct falls well within constitutional boundaries,” the court held.

Fay, who has a long history of sexual misconduct, was committed to the Massachusetts Treatment Center in Bridgewater after a Superior Court judge determined that he suffered from pedophilia and was likely to reoffend against children. In all of the episodes, Fay approached or tried to lure the children, the judge determined.

His lawyer argued that he should not be declared sexually dangerous because he was not likely to commit physical offenses and that his commitment violated his civil rights.

Fay’s lawyer could not be reached for comment Friday.

In its decision, the court cited a previous case in which it ruled that an offender should not be declared sexually dangerous because there was “no reason to believe the defendant’s future sexual offenses would escalate.”

“We now hold that a defendant may be determined to be a ‘menace,’ where he is likely to commit only noncontact sexual offenses,” the court ruled.

“Such a determination turns not on whether he would have the subjective intent to cause harm in engaging in future sex offenses or to engage in a contact sex offense, but on the reasonably expected harm to his prospective victims.”

Eric Tennen, a Boston lawyer who represents sexual offenders in civil commitment cases, said the decision marks a departure from current law, allowing commitments even when “there’s a finding that the offenses are not going to escalate.”

“Civil commitment is supposed to be reserved for the most dangerous” offenders, he said. “There was a general understanding we draw the line at contact offenses.”

While openly lewd acts are clearly criminal, they do not warrant being held indefinitely, he said.

The decision on whether to continue holding a prisoner after his criminal sentence has been served is based on offenders’ predicted behavior, specialists said.

The SJC decision detailed Fay’s previous offenses, dating back to 1995.

That November, he showed a sexually explicit movie to a 13-year-old boy, then asked him to unzip his pants.

When he refused, Fay backed him into a corner while begging him to expose himself, according to the decision. Fay then exposed himself.

Four years later, Fay touched himself in the bedroom of his 11-year-old granddaughter and her 9-year-old sister.

The same day, he engaged his granddaughter in sexually explicit conversation and masturbated in front of her. The girl later told her mother, “crying hysterically as she did so.”

That same year, he exposed himself to three girls, ages 10 and 11, at a campground. He called to them, asking if they would get cigarettes for him from his wife, and when they approached, they saw him exposed.

In 2010, Fay exposed himself to an 8-year-old girl in her home. In each case, he was convicted of open and gross lewdness.

“The judge’s conclusion that the defendant’s conduct in future offenses would cause a child reasonably to fear that he or she was likely to be the victim of a contact sexual offense is amply supported by the record.” ..Source.. by Peter Schworm

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