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Commonwealth v. Wilbur W.

Supreme Judicial Court of Massachusetts, Essex

April 25, 2018

WILBUR W., a juvenile.

          Heard: January 10, 2018.

         Complaint 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Joseph Maggiacomo, III, for the juvenile.

          Marina Moriarty, Assistant District Attorney, for the Commonwealth.

         The following submitted briefs for amici curiae:

          Yale Yechiel N. Robinson, pro se.

          Robert F. Hennessy & Merritt Schnipper for Youth Advocacy Division of the Committee for Public Counsel Services.

          Gary D. Buseck, Bennett H. Klein, & Patience Crozer for GLBTQ Legal Advocates & Defenders & another.

          Marsha L. Levick, Riya S. Shah, & Lisa Swaminathan, of Pennsylvania, for Juvenile Law Center & another.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         The 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.

         In 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.

         The 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.[1]

         1. Background.

         To 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, [2] 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."

         On 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.

         The 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 that?
A.: "Like, I was kinda like shivering, like, scared."
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?"
A.: "No."

         The 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." ...

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