May 6, 2019.
N.E.3d 298] CIVIL ACTION commenced in the Supreme Judicial
Court for the county of Suffolk on February 28, 2019. The
case was reported by Cypher, J.
Langevin Semel, Assistant District Attorney (Kimberly
Faitella, Assistant District Attorney, also present) for the
F. Nason, Jr., for the defendant.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Laws c. 276, � 58A, permits the pretrial detention of a
defendant, without bail, where the individual poses an
ongoing danger such that "no conditions of release will
reasonably assure the safety of any other person or the
community." To be [133 N.E.3d 299] detained pursuant to
a finding of dangerousness prior to trial, a defendant first
must be charged with one of an enumerated set of predicate
offenses. Among these is any "felony offense that has as
an element of the offense the use, attempted use or
threatened use of physical force against the person of
another." G. L. c. 276, � 58A (1).
defendant is alleged to have engaged in sexual activity with
a thirteen year old boy whom he met online, in violation of
G. L. c. 265, � 23A (statutory rape), and G. L. c. 265, � 13B
(indecent assault and battery on a child). In
Commonwealth v. Barnes, 481 Mass. 225, 229-230, 114
N.E.3d 74 (2019), we recently determined that the rape of a
child, not by force but aggravated by age, does
not constitute a predicate offense under G. L. c. 276, � 58A,
because the offense is not one of the enumerated offenses
identified in the statute and does not have as an element the
use, attempted use, or threatened use of physical force. Put
differently, under the dangerousness statute, G. L. c. 276, �
58A, a person charged with statutory rape cannot be held
without conditions of release prior to trial.
Commonwealth argues that a charge for the distinct crime of
indecent assault and battery on a child under the age of
fourteen, at issue here, renders an individual eligible for
such pretrial detention, even where its more severe analog
does not. Compare G. L. c. 265, � 13B (maximum penalty ten
years in State prison), with G. L. c. 265, � 23A (minimum
penalty ten years in State prison). We disagree, and conclude
that a charge of indecent assault and battery on a child
under the age of fourteen may not form the basis for pretrial
detention under G. L. c. 276, � 58A.
following is taken from the agreed-upon statement of facts by
defendant was charged with two counts of aggravated rape of a
child, G. L. c. 265, � 23A, and two counts of
indecent assault and battery on a child under fourteen, G. L.
c. 265, � 13B. He was arraigned in February
2019. At arraignment, the Commonwealth
sought a dangerousness hearing. See G. L. c. 276, � 58A.
of the District Court initially found probable cause to
detain the defendant pending a dangerousness hearing, and
allowed the Commonwealth’s request for a three-day
continuance. The next day, however, the judge sua sponte
required the parties to appear at a second hearing to
determine whether any of the
charges the defendant faced qualified as a predicate
offense under G. L. c. 276, � 58A, in light of our decision
in Barnes, 481 Mass. at 230, 114 N.E.3d 74. The
judge concluded that none of the charges qualified under [133
N.E.3d 300] the statute and that the defendant could not be
detained without bail.
following day, the Commonwealth filed an emergency petition
for extraordinary relief in the county court, pursuant to G.
L. c. 211, � 3. The single justice reserved and reported the
matter to the full court, and at the same time ordered that a
bail hearing be conducted in the District Court.
the pendency of these proceedings, the defendant was indicted
by a grand jury for the same offenses. In April of 2019, the
defendant was arraigned in the ...