We have been discussing the Somerville High School rape case and, in particular, the charges and bail issues which have now faced the one defendant who is facing charges as an adult. The case has already brought up issues which are faced by many Massachusetts criminal defendants in such cases.

This Boston criminal attorney has handled many such cases and I can tell you that defendants and their families are often shocked when it comes to what they find in the system. This unawareness of the system being one of the things I am trying to address in this blog, let’s discuss them.

Attorney Sam’s Take On Rape, Media, Joint-Enterprise And Bail

RAPE AND INDECENT A&B The first thing that may surprise you is that, among the criminal charges is the charge of Rape. After all, there is no allegation that there was any sexual gratification either sought or had by the alleged assailants.
Charges pertaining to sex crimes, such as indecent assault and battery and rape actually have to do with the part of the body affected and not the intent of the suspect. anything inserted into either of the orifices by against the consent of an alleged victim counts as rape. The same is true with the unwanted touching upon one’s behind, groin area or female breast.

Of course, that issue of consent is not necessary when the alleged victim is a juvenile. In that instance, under the laws we generally call “statutory rape” the juvenile cannot consent. Therefore, it becomes rape or indecent assault and battery automatically.

You would be surprised how far this issue can go…but we will discuss that at more length at another time, or at your request if you send me an email at attygoldberg@aol.com.

MEDIA I have told you many times that fear of what will appear in the media the next day often moves the prosecution to do certain things. In this case, perhaps it was because of the horrific details that are alleged that explains why the prosecutor sought a Dangerousness Hearing when it was, in the opinion of most who understand the law, inappropriate. We will discuss that hearing and the bail issue below. However, as Attorney William Korman, the defense attorney in this case, explained, the identity of the 17-year-old defendant has long been revealed. Only his identity has been revealed.

If they were not juveniles, identities of the other two defendants would have been revealed too. However, juveniles or not, the identities of the complainants would have been kept out of the press. We do that in sex cases for complainants. For the defendants…the press often reveals everything possible about a suspect, from the name to the job/school to the street address.

JOINT ENTERPRISE This is a legal theory we have discussed many times, particularly when it comes to alleged criminal conspiracies. It is why it may not matter in this case whether this one defendant actually plunged the broomstick or merely aided the others in doing so. The Commonwealth will doubtlessly argue that the assailants were acting together. Under such a theory, each one is held criminally responsible for what the others do.

It is a powerful prosecutorial argument. However, it also gives rise to a particular defense. We can discuss that at another time.

BAIL AND DANGEROUSNESS HEARINGS This is the big issue which played out last week. A criminal defendant has the right to bail. The purpose for bail is to ensure that the defendant will return to court to faces his or her criminal charges. In this case, there is really nothing to suggest the “adult” defendant will not return. He is a kid. He has surrendered his passport. Presumably, his family is here in Massachusetts. Also, one would imagine he has no criminal history or history of defaults. Such things, of course, would strengthen the argument for bail.

The idea behind a Dangerousness Hearing is that a defendant, while not necessarily a flight risk, is such a threat to the community that he or she must be held without bail to keep everyone safe. It is supposed to be an extraordinary event to keep such a defendant locked up without bail and one of the elements the prosecution must show is that there is not less restrictive means by which the community can be kept safe.

I remind you of the Jared Remi case. Prosecutors throughout the Commonwealth are taking the stinging critics that has followed the prosecutors who did not move to hold that defendant without bail. As I warned you at the time, prosecutors now will err even further toward locking folks up in violent crimes. Perhaps that is the real reason why this prosecutor moved for the hearing even though there was nothing to indicate a threat to the community.

In this case, fortunately for the defense, the court followed the law and not the fear of headlines in his ruling. At the same time, he set bail in a pretty high amount. One of the rationales for this could have been that, facing such heinous charges and a presumably strong Commonwealth case, the defendant would have had strong incentive to flee.

No, that is not an exhaustive list of the issues, of course. But it should get your week started…

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