Supreme Judicial Court (June 25, 2010)

A juvenile who raises a "sufficiently serious" claim to warrant pre-selective prosecution discovery from the Commonwealth should be able to access the same statistical data that an adult may access to investigate a claim of possible selective prosecution.

The defendant, a juvenile, was charged with complaints of rape of a child (statutory rape) which involved two under-age same-sex individuals. The complainant was not charged. The juvenile filed a motion for discovery of statistical data concerning the prosecution of statutory rape charges in Norfolk County involving juveniles engaged in heterosexual conduct and those engaged in homosexual conduct. The juvenile court judge denied the motion without prejudice, and the juvenile filed a motion to dismiss, arguing, among other things, selective prosecution based on sexual orientation. Another juvenile court judge denied the motion to dismiss with prejudice, except for the portion relating to selective prosecution, which the judge denied without prejudice. In response, the juvenile filed a renewed motion for statistical data, which was granted in part. The Commonwealth filed for relief pursuant to c. 211, §3, and a single justice reserved and reported the case to the full court.

The Supreme Judicial Court held that the court did not abuse its discretion in granting preliminary discovery. While the SJC found that the juvenile did not establish a threshold showing warranting full discovery for selective prosecution, they did hold that the juvenile's claim was sufficiently serious to warrant further inquiry. Noting that an adult defendant would be able to search court records to determine the number of prosecutions that have been instituted in same-sex cases of sexual abuse as compared to opposite-sex cases of sexual abuse in the same time frame, the Court held that since juvenile records are closed, the juvenile should be afforded the same discovery as the adult who is raising the issue of selective prosecution. Therefore, the SJC held that the juvenile should be able to discover from the Commonwealth: a) The number of cases where statutory rape, indecent A&B, or both, were charged and where the juvenile and complainant were both under the age of 17; b) The age of those juveniles; and c) The gender of those juveniles. No names or identifying information would be disclosed. "Our decision is limited to the Juvenile Court system, and the discovery granted is only for the purpose of allowing the juvenile to have the opportunity to make a threshold showing of relevance in order to obtain further discovery. If he can make a showing of relevance based on the data produced by the Commonwealth, then he may be entitled to broader discovery in accordance with selective enforcement precedent."