Sex Offender Legislation in Massachusetts

COMMITMENT TO MASSACHUSETTS TREATMENT CENTER FOR SEXUALLY DANGEROUS PERSONS

Outline of Sexually Dangerous Persons Commitment Procedure

G.L. c. 123A, § 1 (Selected Definitions)

“Agency with jurisdiction”: the agency with the authority to direct the release of a person presently incarcerated, confined or committed to the department of youth services including, but not limited to a sheriff, keeper, master or superintendent of a jail, house of correction or prison, the director of a custodial facility in the department of youth services, regardless of the reason for such incarceration, confinement or commitment, the parole board and, where a person has been found incompetent to stand trial, a district attorney. [hereafter “agency”] Added by St. 2004, c. 66, § 1 (4/7/04).

“Conviction”: a conviction of or adjudication as a delinquent juvenile or a youthful offender by reason of sexual offense, regardless of the date of offense or date of conviction or adjudication. Added by St. 2004, c. 66, § 2 (4/7/04).

“Mental abnormality”: 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.

“Personality disorder”: a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses.

“Sex offense”: includes any of the following crimes:

  • indecent assault and battery on a child under fourteen (G.L. c.265, §13B);
  • indecent assault and battery on a mentally retarded person (G.L. c.265, §13F);
  • indecent assault and battery on a person who has obtained the age of fourteen ((G.L. c.265, §13H);
  • rape (G.L. c.265, §22);
  • rape of a child under sixteen with force (G.L. c.265, §22A);
  • rape and abuse of a child under sixteen (G.L. c.265, §23);
  • assault with intent to commit rape (G.L. c.265, §24);
  • assault on a child with intent to commit rape (G.L. c.265, §24B);
  • kidnapping with intent to commit above offenses (G.L. c.265, §26);
  • enticing away a person for prostitution or sexual intercourse (G.L. c.272, §2);
  • drugging persons for sexual intercourse (G.L. c.272, §3);
  • inducing a person under 18 into prostitution (G.L. c.272, §4A);
  • living off or sharing earnings of a minor prostitute (G.L. c.272, §4B);
  • open and gross lewdness and lascivious behavior (G.L. c.272, §16);
  • incestuous intercourse involving a person under the age of 21 (G.L. c.272, §17);
  • dissemination or possession with the intent to disseminate to a minor matter harmful to a minor (G.L. c.272, §28);
  • posing or exhibiting a child in a state of nudity (G.L. c.272, §29A);
  • dissemination of visual material of a child in a state of nudity or sexual conduct (G.L. c.272, §29B);
  • purchase or possession of visual material of a child depicted in sexual conduct (G.L. c.272, §29C);
  • dissemination of visual material of a child in the state of nudity or in sexual conduct (G.L. c.272, §30D);
  • unnatural and lascivious acts with a child under the age of sixteen (G.L. c.272, §35A);
  • accosting or annoying persons of the opposite sex and lewd, wanton and lascivious speech or behavior (G.L. c.272, §53);
  • any attempt to commit any of the above listed crimes (G.L. c.274, §6);
  • a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority; or
  • any other offense, the facts of which, under the totality of the circumstances, manifest a sexual motivation or pattern of conduct or series of acts of sexually-motivated offenses.    Added by St. 2004, c. 66, §§ 3-6 (4/7/04).

“Sexually dangerous person”: any person who has been

(i) convicted of or adjudicated as 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; (See Kansas v. Hendricks, 117 S.Ct. 2072 (1997))

(ii) charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or

(iii) 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 attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.

G.L. c. 123A, § 6A
SDPs to be held in the most appropriate level of security required to ensure protection of the public, correctional staff, himself and others. Any juvenile who is committed as SDP to be segregated from any adults held at such facility.

G.L. c. 123A, § 12

(a) Agency with jurisdiction over person ever convicted of or adjudicated as delinquent juvenile or youthful offender by reason of a sexual offense, regardless of reason for current incarceration, confinement or commitment, or over person charged with sexual offense but found incompetent to stand trial (IST), or found IST for any other offense and previously convicted of or adjudicated as a delinquent juvenile or a youthful offender by reason of a sexual offense, to notify DA and AG, in writing, 6 months prior to person’s release. [Where person returned to prison for less than 6 months as a result of parole revocation or committed for less than 6 months, notice ASAP following admission to prison.]  Agency to specify prisoners or youths “who have a particularly high likelihood of meeting the criteria for SDP.”  Added by St. 2004, c. 66, §§ 7-9 (4/7/04).

(b) If DA or AG determines person likely to be SDP, DA or AG (at DA’s request) may petition alleging SDP, stating sufficient facts to support allegation, in superior court where person committed or in superior court of county where sexual offense occurred.

(c) Upon filing of petition, court to determine whether probable cause exists to believe that person is SDP.  Person provided with notice of, and an opportunity to appear in person at, PC hearing.

(d) At PC hearing, person has right to:
(i)   counsel;
(ii)  present evidence;
(iii) cross-examine adverse witnesses; and
(iv)  view and copy all petitions and reports in court file.

(e) If person scheduled to be released prior to PC determination, the court, upon a “sufficient showing based on the evidence before the court at that time,” may temporarily commit to TC pending disposition of petition.  Person may move court for relief from temporary commitment at any time prior to PC determination.

G.L. c. 123A, § 13

(a) If court finds PC of SDP exists, person committed to TC for period not exceeding 60 days for examination and diagnosis by two qualified examiners.  Report to be filed no later than 15 days prior to expiration of 60-day period (diagnosis and recommendation as to disposition).

(b) Court to supply qualified examiners with copies of juvenile and adult court records containing, if available, history of previous juvenile and adult offenses, previous psychiatric and psychological examinations and other information “pertinent or helpful” to examiners in making their diagnosis and recommendation.  DA or AG to provide narrative or police reports for each sexual offense conviction or adjudication, as well as psychiatric, psychological, medical or social worker records in their possession. Agency to provide copies of any incident reports.

(c) Person entitled to counsel (appointed if indigent). All documentation submitted to qualified examiners to be provided to counsel and DA or AG.

(d) Person may retain psychologist or psychiatrist (meeting requirements of “qualified examiner”) to perform examination on his behalf.  If person indigent, court to provide qualified examiner.

G.L. c. 123A, § 14

(a) Within 14 days of filing of report, DA or AG may petition court for trial (by jury unless affirmatively waived by alleged SDP).  If petition timely filed, court to notify person and counsel, DA or AG that trial to be held within 60 days to determine whether SDP.  Trial may be continued upon motion of either party for good cause or by court in “interests of justice,” unless person will be “substantially prejudiced.” Person to be confined at secure facility for duration of trial.

(b) Person entitled to: (i)  counsel (ii)  retain experts or “professional persons” (must be afforded reasonable access to person and to “all relevant medical and psychological records and reports”).  If indigent, court to determine whether expert or professional services necessary and set reasonable compensation. Court to assist in obtaining expert. If person intends to rely upon testimony or report of qualified examiner, report to be filed with court and DA or AG no later than ten days prior to trial. Process to be issued from court to compel attendance of witnesses.

(c) Juvenile and adult court probation records, psychiatric and psychological records and reports of person, including report of any qualified examiner, police reports relating to prior sexual offenses, incident reports arising out of incarceration or custody, oral or written statements to be offered at trial by “victims,” and any other evidence tending to show person is or is not SDP are admissible if provided to opposing counsel reasonably in advance of trial.

(d) If after trial, jury finds unanimously and beyond a reasonable doubt that person is SDP, committed to TC or, if a youth adjudicated as a delinquent, to DYS until 21, and then to TC for indeterminate period of day-to-life or discharged pursuant to §9.  Commitment order forwarded to TC and appropriate agency; effective on date of parole or in all other cases, including persons sentenced to community parole supervision for life, on date of discharge from jail, house of correction, prison or DYS facility.

(e) If person scheduled to be released from jail, house of correction, prison or DYS prior to final judgment, court may temporarily commit to TC pending disposition of petition.