SJC rules on refusal of SDP treatment

7-16-2012 Massachusetts:

The Supreme Judicial Court has ruled that an accused sex offender’s refusal to undergo treatment may under some circumstances not be admitted in civil commitment proceedings.

“[A]lthough evidence that a defendant in an SDP civil commitment proceeding did not receive sex offender treatment is admissible, we conclude that it is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality,” Justice Ralph D. Gants wrote for a unanimous court (Commonwealth v Hunt).

“Where sex offender treatment is conditioned on a waiver of confidentiality, refusal of treatment alone is insufficient to support an inference that the prisoner does not want to be treated,” the SJC reasoned. “If the Commonwealth were to provide sex offender therapy without requiring a waiver of confidentiality, then this inference arising from refusal would be fair and reasonable.” ..Source.. by Mass. Lawyers Weekly

---

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.

SJC decision allows for sex offender's release

6-15-2014 Massachusetts:

The state’s Supreme Judicial Court this week ruled that Level 3 sex offender David Gangi can no longer be held as a sexually dangerous person because it’s unlawful and unconstitutional.

By a unanimous 7-0 vote, the justices ruled that Gangi, 75, who was convicted of sexually assaulting a 22-year-old man at his Andover apartment in 2005, can no longer be kept at the Massachusetts Treatment Center for sexually dangerous persons, according to the decision issued Wednesday.

Gangi’s decision was handed down the same day the SJC ruled a state law created “community parole for life” for sex offenders was unconstitutional. Only judges can impose additional jail time on sex offenders who have completed their original sentences, according to the ruling.

In addition to the 2005 incident, Gangi also had sexual assault convictions in 1992 and 1993 involving 14-and 15-year-old boys and was previously described by Superior Court Judge Leila Kern as “someone with a sex addiction who can’t control himself.”

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.

DA: Roslindale child predator civilly committed after jury finds him sexually dangerous

---

Note: Commitment is based on a "legislative definition" not a "psychiatric definition," which means the legislature could confine anyone they disfavor by passing such a law..

1-19-2015 Massachusetts:

A sex offender from Roslindale previously convicted of manslaughter faces potential lifetime commitment at a secure facility after a jury on Jan. 16 found him to be sexually dangerous, Suffolk County District Attorney Daniel F. Conley said.

After a three-day trial and about an hour of deliberations, a Suffolk Superior Court jury found Manuel Encarnacion, 43, of Roslindale, a sexually dangerous person under Ch. 123A of the Massachusetts General Laws, the DA said.

Judge Raffi Yessayan civilly committed Encarnacion to the Massachusetts Treatment Center in Bridgewater for a period of one day to life. The commitment comes at the conclusion of Encarnacion’s state prison sentence for a conviction in Suffolk Superior Court for indecent assault of a child under 14 and assault and battery.

Under the sexually dangerous person statute, prosecutors may seek post-incarceration civil commitment for any person serving a sentence for certain sex offenses if a qualified examiner finds the defendant to be sexually dangerous. Though they are civil proceedings, prosecutors’ burden of proof is beyond a reasonable doubt, just as in criminal cases. If found to be sexually dangerous, the defendant is committed to a secure facility for a period of one day to life but may petition for release once a year.



At trial, Assistant District Attorney Nicole Poirier of the DA’s Sexual Assault Unit presented testimony of two experts and other evidence to prove beyond a reasonable doubt that Encarnacion is likely to commit future sex offenses if not confined to a secure facility, the DA said. His SDP commitment means that he will be released from prison directly to the Massachusetts Treatment Center.

Encarnacion was previously convicted of indecently assaulting a young girl who was known to him. The victim’s family had opened their home to the defendant and allowed him to sleep on a couch the night prior to the April 18, 2009, assault. That morning, Encarnacion entered the room where the victim was playing video games and caring for an infant relative and violently knocked her to the floor, covered her mouth with his hand, and sexually assaulted her.

Encarnacion was later arrested and ultimately convicted of indecent assault and battery of a child under 14 and assault and battery but acquitted of assault with intent to rape; he was sentenced to four to five years in prison followed by probation until May 2019. During his time in prison, the evidence showed, he has refused to take part in sex offender therapy since January 2013. While incarcerated he has also been disciplined for various offenses, most notably orchestrating an assault on a fellow inmate in which 60 inmates took part. A corrections officer was also injured in the incident.

Jurors also heard evidence that Encarnacion previously served a decade in prison for a conviction of manslaughter committed in Worcester County in 1986 when Encarnacion was age 14.

Two qualified examiners testified that Encarnacion presented with a personality disorder as defined by Ch. 123A, Sect. 1, of the Massachusetts General Laws and is likely to reoffend sexually if not confined to strict security.

Encarnacion was represented by Victoria Kelleher. ..Source.. by Staff reports

---