Heard: January 10, 2018.
received and sworn to in the Essex County Division of the
Juvenile Court Department on August 24, 2009. The case was
tried before José Sánchez, J.
Supreme Judicial Court granted an application for direct
Maggiacomo, III, for the juvenile.
Moriarty, Assistant District Attorney, for the Commonwealth.
following submitted briefs for amici curiae:
Yechiel N. Robinson, pro se.
F. Hennessy & Merritt Schnipper for Youth Advocacy
Division of the Committee for Public Counsel Services.
D. Buseck, Bennett H. Klein, & Patience Crozer for GLBTQ
Legal Advocates & Defenders & another.
L. Levick, Riya S. Shah, & Lisa Swaminathan, of
Pennsylvania, for Juvenile Law Center & another.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
crime of statutory rape, G. L. c. 265, § 23, is a strict
liability offense. To prove statutory rape, the Commonwealth
is required to establish that the accused had sexual
intercourse with a person who was less than sixteen years old
at the time. See Commonwealth v. Bernardo B., 453
Mass. 158, 172 (2009). As a matter of law, a person below the
age of sixteen is deemed incapable of consenting to sexual
intercourse. Therefore, lack of consent is not an element of
the offense, and the intent of the accused is not relevant.
See G. L. c. 265, § 23; Commonwealth v. Miller,
385 Mass. 521, 522 (1982). When two minors have consensual
sexual relations, both of whom are members of the class the
statute is designed to protect, each has committed a
statutory rape. This case requires us to decide whether, as
applied to a juvenile offender under the age of sixteen, a
conviction of statutory rape was constitutional, where the
juvenile maintains that he was involved in consensual sexual
experimentation with another child.
2009, a delinquency complaint issued against the juvenile,
charging him with two counts of rape of a child by force, G.
L. c. 265, § 22A, and dissemination of child
pornography, G. L. c. 272, § 29B. At the time of the
alleged offenses, the juvenile was twelve years old and the
victim was eight years old. Following a trial in the Juvenile
Court, a jury found the juvenile delinquent on the lesser
included offenses of statutory rape. The juvenile filed a
notice of appeal from the adjudication of delinquency, and we
allowed his motion for direct appellate review.
juvenile contends that enforcement of the strict liability
statutory rape charge against him violates his Federal and
State constitutional rights to due process and equal
protection. He argues that imposition of criminal liability
on a child for a strict liability offense, where the premise
of the offense is that a child under sixteen lacks the
capacity to understand and consent to the conduct, is
fundamentally unfair. The juvenile maintains that a child
under sixteen cannot be deemed to understand and assume the
legal risks of engaging in sexual activity with another child
under the age of sixteen, as the statute requires of an
adult, and that the imposition of criminal responsibility for
peer-aged sexual experimentation is contrary to the statutory
purpose of protecting children from sexual abuse. He also
argues, for the first time on appeal, that he should have
been considered a victim of statutory rape, and that the
government wrongfully singled him out for prosecution. The
issues the juvenile raises as to experimentation among
consenting juveniles are not before us in this case, where
the victim testified that he was afraid and felt compelled to
comply with the juvenile's demands. Accordingly, we
conclude that, as applied in these circumstances, enforcement
of the statutory rape charge is constitutional, and affirm
the adjudication of delinquency.
determine whether statutory rape is constitutional, as
applied to the juvenile's conduct, we examine the
evidence in the light most favorable to the Commonwealth. See
Commonwealth v. Oakes, 407 Mass. 92, 95 (1990);
Commonwealth v. Bohmer, 374 Mass. 368, 370 (1978).
In the summer of 2009, the victim was an eight year old third
grader, who lived with his father in a city near Boston. The
victim met the juvenile, who was twelve years old and a
seventh grader, when the victim moved into the neighborhood
earlier that year. The victim and the juvenile became
friends. They played together at the park and with other
children in the neighborhood, and they played video games at
the victim's apartment. Carol,  who had been friends with
the victim's mother, was his live-in caretaker. Carol
also watched the juvenile on occasion, and the juvenile
referred to her as "Grammy."
August 10, 2009, as he had on previous occasions, the
juvenile visited the victim for a sleepover while the
victim's father was working a late shift. During the
evening, the victim and the juvenile went into the
victim's bedroom to play a video game. While both boys
were on the bed taking turns using the video game controller,
the juvenile told the victim to stand next to a bureau. The
bureau, which was "the same height as [the victim],
maybe a little bit taller, " was positioned on an
interior wall adjacent to the bedroom door, such that, when
standing in the space next to the bureau, the two boys were
not visible from the doorway. The victim did not want to do
this, but complied because the juvenile told him to do it.
juvenile instructed the victim to "pull down [his]
pants" so that he could put his "penis" in the
victim's "butt." The victim was
"shivering" and "scared." He testified:
Q.: "And what did you think or feel when he told you
A.: "Like, I was kinda like shivering, like,
Q.: "Okay. And why were you scared?"
A.: " Because I didn't, like -- because I was, like,
I didn't like, like -- like, I was scared because
Q.: "Did you want to do that?"
juvenile pulled down his own pants, and told the victim to
put his mouth on the juvenile's penis. The victim
complied for "two seconds" because the juvenile was
"bigger, " and he was afraid of what the juvenile
would do to him. The juvenile then inserted his penis in the
victim's "butt." ...