Heard: March 7, 2017.
Offender Act. Practice, Criminal, Indictment, Interlocutory
appeal. Rape. Civil action commenced in the Supreme Judicial
Court for the county of Suffolk on June 15, 2016.
case was considered by Botsford, J.
C. Mezer (Joseph J. Machera also present) for the juvenile.
E. DeRosa, Assistant District Attorney, for the Commonwealth.
E. McDonnell, Vanessa M. Brown, & Joshua Silverstein, for
Youth Advocacy Division of the Committee for Public Counsel
Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
consider whether a juvenile, who has been indicted as a
youthful offender, is entitled as of right to interlocutory
review of a denial of a motion to dismiss that indictment. We
also consider whether the youthful offender indictment in
this case was sufficiently supported by probable cause. We
conclude that a juvenile is not entitled to G. L. c. 211,
§ 3, interlocutory review as a matter of right in these
circumstances. Nevertheless, we exercise our discretion to
reach the merits of the petition and conclude that the
youthful offender portion of the indictment was not
sufficiently supported by probable cause because the charged
conduct did not involve the infliction or threat of serious
following facts are taken from the testimony and exhibits
presented to the grand jury. In December, 2014, or January,
2015, the complainant disclosed to her mother that her female
cousin, the juvenile, had been sexually touching her for the
last few years, starting when the complainant was age five or
six and the juvenile was age fourteen or fifteen. The girls
attended weekly dance classes together and afterward would
spend time in the juvenile's bedroom napping or watching
movies, away from adult supervision. The complainant told her
mother that in this setting the juvenile had
"kissed" her on her breasts, "touched"
and "inserted [a] finger" in her vagina, and
"instructed" her to touch the juvenile's
vagina. The complainant's mother reported the sexual
activity to police in May, 2015.
conducted a sexual abuse intervention network interview,
during which time the complainant shared similar descriptions
of the activities. The complainant reported that the juvenile
would sometimes discuss her sex life with the complainant and
would "explain what she was doing" to the
complainant when she touched the complainant. Sometimes the
sexual touching "kind of hurt" because the
complainant "was littler than [the juvenile]."
Sometimes the complainant "did want to do it, " but
other times she (in her mind) did not but nevertheless
"felt like [she] had to." In response to a question
from a member of the grand jury, a detective testified that
the juvenile had made no threats to the complainant, and that
the juvenile and the complainant "care[d] a lot"
about each other. The juvenile told the complainant to tell
her to stop the touching if it hurt.
jury returned a youthful offender indictment against the
juvenile, charging her with rape of a child. See G. L. c. 119,
§ 54; G. L. c. 265, § 23. The juvenile moved to
dismiss the indictment, citing insufficient evidence to
establish probable cause to believe that the alleged conduct
involved the infliction or threat of serious bodily harm.
After the denial of that motion, she petitioned for review by
a single justice of this court pursuant to G. L. c. 211,
§ 3. The single justice denied the petition, and the