Supreme Judicial Court (June 9, 2010)

An attempt to commit an indecent assault and battery is a felony offense that may be properly charged by the Commonwealth.

The defendant was indicted on several charges including an attempt to commit a crime in violation of c. 274, §6, namely, indecent assault and battery on a person over the age of fourteen. Prior to trial, the Superior Court judge reported the case to the Appeals Court, and the SJC transferred the case on its own motion. The question before the Court was whether an indictment alleging an attempt to commit an indecent assault and battery is a felony offense that is cognizable under the laws of the Commonwealth. The SJC answered affirmatively.

The defendant argued that since he did not commit an actual battery, and the crime of attempted indecent assault does not exist, then he cannot be convicted of an attempt to commit an indecent assault and battery. The SJC disagreed reasoning that the Commonwealth was theoretically able to prove under the attempt statute "an intention to commit the underlying offense (of indecent A&B) and also an overt act toward its commission." "While a defendant may not be prosecuted for indecent assault without a completed battery, the fortuity that the defendant failed in his attempt to complete a crime [the battery] does not absolve him from responsibility for it [under the attempt statute]."