Supreme Judicial Court, July 16, 2012

“[I]t is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality.”

A Plymouth Superior Court Jury found the defendant to be a sexually dangerous person (SDP) as defined by G.L. 123A, § 1, and he was committed to the Massachusetts Treatment Center for a day to life.  The defendant appealed based on several issues; three are discussed below.  The Appeals Court affirmed the judgment and the Supreme Judicial Court granted the defendant’s application for further appellate review. 

Admission of the defendant’s failure to participate in treatment

While serving his sentence in prison and at the treatment center, awaiting the trial on his SDP petition, the defendant repeatedly turned down the opportunity to participate in sex offender treatment. To participate in any of this treatment, the defendant had to agree that his progress in treatment could be shared with the parole board, department of corrections, and qualified examiners for the SDP proceedings.  The defendant filed a motion to exclude this evidence at his SDP trial and the judge denied his motion.

“The defendant contends that the admission in evidence of his refusal of treatment violates his privilege against compelled self-incrimination under the Fifth and Fourteenth Amendments and art. 12 of the Massachusetts Declaration of Rights because the admission of such evidence constitutes a penalty to compel testimony that has not been immunized.”  The Court considered whether the refusal to enter sex offender treatment constitutes compelled self-incrimination and violates the defendant’s constitutional rights. It found the risk to the defendant in a SDP proceeding falls short of the severity of penalty necessary to find compulsion under the Fifth and Fourteenth Amendment.  Even though the rights against self-incrimination under art. 12 are generally broader than under the Fifth Amendment, the Court concluded “that the possibility that evidentiary use will be made of the defendant’s refusal to participate in sex offender treatment does not constitute compulsion of such treatment in violation of art. 12.”  

Finding no constitutional violations, the Court next considered common-law evidence and the potential for unfair prejudice arising from the admission of refusing to participate in treatment, which requires a confidentiality waiver.  The relevant inquiry for determining recidivism is whether a defendant engaged in treatment, not why he did not.  Further, “[w]here sex offender treatment is conditioned on a waiver of confidentiality, refusal of treatment alone is insufficient to support an inference that the prisoner does not want to be treated.”   “Therefore, although evidence that a defendant in a SDP civil commitment proceeding did not receive sex offender treatment is admissible, we conclude that it is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality.  The risk of unfair prejudice arising from such evidence substantially exceeds its probative value, especially where, as just stated, the jury properly may learn that the defendant did not receive sex offender treatment.”

Admission of rumors that the defendant sexually assaulted another inmate

The defendant contends that the judge abused his discretion in admitting evidence of an unsubstantiated report that he sexually assaulted another inmate.  The only reference to these rumors came from the defendant during the trial.  However, the judge believed he was bound by Commonwealth v. Markvart, 437 Mass. 331 (2002) to admit these rumors because they were mentioned in prison incident reports and therefore are admissible under G.L. c. 123A, § 14(c). 

The SJC utilized the American Heritage Dictionary 886 (4th. ed. 2006) to define “incident report” and found that the defendant’s references to the rumors were not contained in an “incident report.”  Since the rumors were not admissible under G.L. c. 123A, § 14(c), the  Court considered whether the rumors were admissible under the common-law rules of evidence and held the unsubstantiated rumors of rape could not be admitted for the truth of the matter.  The SJC found the judge erred in admitting this evidence at the SDP trial.

Jury Instructions

The defendant alleged three errors in the judge’s instructions to the jury.

First, the judge instructed the jury "[i]n this case, all the experts agreed that the mental abnormality at issue is pedophilia, although the experts disagree about whether [the defendant] meets the clinical diagnostic criteria for pedophilia."  The Court held that the judge’s instruction suggested that all the experts agreed that pedophilia was a mental abnormality and this mischaracterized the expert opinions.

Next, the judge instructed the jury "[y]ou may conclude that [the defendant] is likely to commit a future act of sexual misconduct if you find that [the defendant] has not committed any act of sexual misconduct during his incarceration."  The Court held that this instruction omitted the word “even” before the word “if” and therefore gave inappropriate legal validation to the prosecutor’s argument that because the defendant spent approximately eighteen years in jail he was sexually frustrated and likely to offend on release.

“Finally, the defendant contends that the judge erred in instructing the jury that if the evidence supports two plausible inferences, ‘one consistent with the finding of [the defendant] as sexually dangerous and the other that he is not,’ then sexual dangerousness has not been proven beyond a reasonable doubt. In Commonwealth v. Beverly, 389 Mass. 866, 873 (1983), we declared that ‘a reference to the consequences of an even balance in the evidence preferably should not be included in a charge on reasonable doubt[.]’"  Therefore, it would have been preferable to omit this instruction but it did not create confusion for the Commonwealth’s burden.

The Court held that the admission of the refusal to participate in treatment, the rumors of the defendant sexually assaulting an inmate, the errors in the jury instruction and the prosecutor’s improper closing remarks concerning the defendant’s sexual frustration required a reversal of the judgment of sexual dangerousness.  The case was remanded for a new trial.