Appeals Court (January 7, 2009)

The Legislature intended to include those who commit noncontact offenses in the SDP statute, including open and gross lewdness, which is an enumerated offense in c. 123A, §1. This case also serves as a reminder that the determination of sexual dangerousness is a legal and not a psychiatric question and it is improper for experts to interpret the definition of a sexually dangerous person.

The defendant (31 years old), was the subject of a petition for civil commitment, and had been convicted eleven times of open and gross lewdness since he was 16 years old. As an adult, he has been convicted of no other crime other than open and gross lewdness. At the SDP trial, all five psychologists opined he was likely to reoffend. However, the defense experts improperly offered legal interpretations of the definition of sexually dangerous person. The judge adopted these improper interpretations and held that the Commonwealth failed to meet its burden of proving the defendant was a danger to the public since he only committed noncontact offenses. The Appeals Court reversed.

The Legislature, in enacting c. 123A, §1, has already determined that one who has been convicted of open and gross lewdness, and who as a result of either a personality disorder or mental abnormality is likely to reoffend, is a sexually dangerous person. As stated in McHoul, petitioner, 445 Mass. 143, 155 (2005), the Legislature "made no statutory distinction between classes of injuries likely to be inflicted on future potential victims if the [defendant] were released into the community." The Legislature intended sexually dangerous persons to include those who commit noncontact offenses. "One who, as a result of a mental abnormality or personality disorder, has repeatedly exposed himself to adolescent girls and women in the past and is likely to do so in the future may pose a menace to the health and safety of others."