Supreme Judicial Court (September 16, 2011)

In order to prove a defendant suffered a mental abnormality, the Commonwealth must prove the defendant's disorder makes him a "menace to the health and safety of other persons." This requires a showing that the "defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice."

The Commonwealth filed a G.L. c. 123A petition anticipating the defendant's release from custody on March 25, 2010. The defendant's record began in 1986 and involved eight convictions for open and gross lewdness and lascivious behavior or indecent exposure. He was never convicted for a crime of violence and all of his sex offenses were "hand-off" and did not include any stalking, luring, approaching, confining or touching a victim.

At a jury-waived trial on the G.L. c. 123A petition, the Judge in Superior Court found the statute permitted a finding of a sexually dangerous person based on his history of noncontact sex-offenses and the likelihood of only committing noncontact offenses in the future. In considering the defendant's constitutional argument, the Superior Court Judge found as a matter of substantive due process the Commonwealth must show the defendant is likely to commit a crime of sexual violence before he can be committed as a sexually dangerous person. Applied to this case, the crime of open and gross lewdness and lascivious behavior is not sexually violent and therefore standing alone could not predict the future behavior of sexual violence needed to justify a sexually dangerous person commitment. The Commonwealth appealed and sought a stay of the defendant's release pending appeal. A single justice in the Appeals Court granted the stay and the Supreme Judicial Court transferred the case from the Appeals Court on its own motion.

"In order to find the defendant is a 'sexually dangerous person,' the Commonwealth must prove three things: (1) the defendant has been convicted of a '[s]exual offense,' as defined in G.L. c. 123A, § 1; (2) he suffers from a '[m]ental abnormality' or '[p]ersonality disorder,' as those terms are defined in § 1; and (3) as a result of such mental abnormality or personality disorder, the defendant is 'likely to engage in sexual offenses if not confined to a secure facility.' G.L. c. 123A, § 1 (definition of '[s]exually dangerous person'). The Commonwealth's burden of proof is beyond a reasonable doubt. See G.L. c. 123A, § 14 (d)."

While the Superior Court judge reached the constitutional issue, the Supreme Judicial Court's decision rested on the statutory interpretation of the aforementioned second element concerning "mental abnormality." Determining whether a defendant suffers a mental abnormality involves legal and medical aspects. In this case, the medical aspect was undisputed - he was diagnosed with exhibitionism as defined in the Diagnostic and Statistical Manual (4th ed. 2000). The focus in this case was on the legal aspect of the element, which requires proof that the defendant's disorder makes him a "menace to the health and safety of other persons."

The Court looked to the criminal definition of menace by examining the definition as used in assault by threatened battery and as it is incorporated in the definition of "mental abnormality" in G.L. c. 123A, § 1. It held "the Commonwealth must show the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice. This is consistent with the ordinary usage of the word 'menace,' and with the words 'health and safety' as used immediately after the word 'menace' in the statute."

In this case, the defendant never stalked, lured, approached, confined or touched a victim, his victims were all adults and there was no reason to believe that the offenses would escalate into contact offenses. Therefore, as a matter of law, the manner in which the defendant would likely reoffend (another noncontact open and gross lewd and lascivious charge) did not render him a "menace to the health and safety of other persons" as required by the definition of mental abnormality in G.L. c. 123A, § 1.

The Court acknowledged that the analysis is fact specific and that it "can easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant."