Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Articles Posted in Sexual Crimes

Well, 28-year-old Miles Anderson (hereinafter, the “Defendant”) is in criminal court type trouble.

Police in New Hampshire say that he has been accused of breaking into a home, taking off his clothes, and assaulting a sleeping child.

Law enforcement says that the Defendant entered the Concord home shortly after 4 a.m. Monday. He made his way into the child’s bedroom and disrobed. Police say he then assaulted the child, who was able to run away and alert family members.

Another man who lives in the house was able to restrain the Defendant while other household members called the police.

According to Boston.com, the Defendant was arrested on charges of burglary, indecent exposure, and simple assault

Attorney Sam’s Take On What You Think This Means

Most folks will look at these facts and assume that the Defendant forced himself into a home, found a child sleeping and sexually assaulted her.

This would be inconsistent with the charges that are now pending. I should advise you that this is a New Hampshire case. Although the criminal laws tend to be similar, I offer this proviso that I am writing about this as if it were a Massachusetts case.

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Often, I receive calls from victims of crimes.

Yes, I know that I generally call them “complainants” because I am a criminal defense  attorney. I do know, however, that crimes do indeed happen and, when they do, it is usually a victim that they happen to.

Besides, as far as I am concerned, if my client tells me that he or she is a victim of a crime, I can hardly disagree. After all, I was not there at the event.  If I were, i would be a witness.  But that is a whole other subject.

Does it surprise you that I am sometimes hired by victims of crimes to help them through the criminal justice system?

It shouldn’t.  For the uninitiated, the criminal justice system is a foreign and scary land.

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Well, the hearing in Lansing, Michigan, has grabbed the attention of the nation over the past week or so. The court’s judgment came down yesterday.

Larry Nassar, hereinafter, the “Defendant”, the 54-year-old former sports doctor (who had already been convicted of dealing in child pornography) has now been given his sentence in his most recent brush(es) with the law. I invoke the plural given the sheer number of victims.

As reported by the Boston Herald, the Defendant has admitted sexually assaulting  some of the nation’s top gymnasts for years under the guise of medical treatment.

There was no room for doubt as to how the judge felt as she sentenced him. Aside from indicating that she would not be opposed to a death penalty sentence in his case, statements like “”I just signed your death warrant” and “It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again.” Left little room for doubt.

Neither did the sentence of 40 to 175 years in prison. He had already been sentenced to a 60 year sentence for the above-mentioned child pornography case.

The sentence came after a seven-day hearing in which scores of the Defendant’s victims were able to confront him face to face in court for the sentencing hearing.

Attorney Sam’s Take On Massachusetts Criminal Sentencing

First, let’s deal with the question which serves as the title for today’s posting. The answer is “I doubt it” as to whether the sentencing hearing would have played out differently in Massachusetts. The only reason there is any doubt is that different personalities might be involved The process of a sentencing hearing is the same.

By law, victims are accorded the right to address the court as to the effects of the crimes by a given defendant. Their input is considered along with other factors when the judge considers the proper sentence.

“Sam, what are the factors?”

 

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Yesterday, We began discussing some realities of Massachusetts sexual assault prosecution about which you may not be aware.

In this case, what you don’t know can ruin your life. I have seen it happen time and again.

Once the allegation is made, getting an experienced criminal defense attorney is your one best option to fix your life…but there will be damage nonetheless. So, it is worth taking the time to realize this reality now.

Better to not need my help.

    Attorney Sam’s Take The New Realities of Sexual Assault Prosecutions

We discussed the new understanding of what constitutes a “no”…particularly if you want to be safe in avoiding criminal prosecution. There are some instances in which even a “yes” is not good enough to overcome an assumption of “no”.

For example, lets say that Peter Partier is at a party where he meets Adorable Annie. Both of them have had a few drinks and they hit it off. Annie is clearly pretty loaded, but Peter is pretty buzzed too. He walks her to her apartment (or dorm room) and begins to make “the moves” on her. She responds affirmatively and they have sex.

In the morning, Annie seems a bit embarrassed, but still friendly and they agree they will get together again later in the week. Peter leaves, perhaps figuring he has a new “girlfriend”. He is wrong. He may have a new “victim”.

I have seen this scenario play out many times where Annie’s friends explain to her that, because she was drunk, she was raped. I have seen other rationales as well, such has having to explain to a boyfriend, or a simple remorseful feeling of “That’s not me!”

“Well, that’s ridiculous, Sam! She cannot simply claim that after the fact! “

No? Why not? Few rapes are reported before the fact.

“You know what I mean. She never indicated, or even thought, that she did not want to consent to sex”.

True. However, she may have been drunk. Under the law, if she were drunk, she could not, as a matter of law, have consented. Its like saying an infant can consent to sex.

“But Peter was buzzed too!”

Yes, but Peter is not claiming he was raped. Annie is. Remember something we have spoken about in the past many times. Often, the difference between who will be the “victim” and who will be the defendant is in who makes the complaint first.

Besides, there is an obvious presumption that the male is the aggressor.

Again, maybe Peter will win at trial. But what I am trying to do here is to avoid that harrowing adventure for him.

I mentioned that this could have taken place in a dormitory room. This brings us to the fact that many of these cases take place in schools. For a student to be facing such allegations, the prosecution, or even the allegation is never prosecuted by law enforcing, it is twice as devastating.

“Why is that?”

 

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As exemplified by the “Me Too” movement, stories of sexual harassment and sexual assault are rampant. The prevalence of the reports are staggering to most people.

One of the most recent spotlights on the subject was none other than Oprah Winfrey who commented on the movement, as CNN tells us, at the Golden Globe awards.

Oprah announced that she had been “inspired” by “all the women who have felt strong enough and empowered enough to speak up and share their personal stories.”

She further stated, “For too long, women have not been heard or believed if they dared to speak their truth to the power of those men, but their time is up…. I want all the girls watching here, now, to know that a new day is on the horizon! And when that new day finally dawns, it will be because of a lot of magnificent women, many of whom are right here in this room tonight, and some pretty phenomenal men, fighting hard to make sure that they become the leaders who take us to the time when nobody ever has to say ‘Me too’ again”.

It would seem that the type of stories Oprah is talking about are pretty obvious tales of sexual harassment and abuse.

In my experience, however, on both sides of these types of cases, the “rules” regarding sexual interaction are often not so clear.

That is primarily because they have been changing.

    Attorney Sam’s Take On Being Clear on Sexual Assault

When I was a prosecutor in the Sex Crimes and Special Victims Bureau in the Brooklyn DA’s Office, things seemed to be pretty clear and simple.

Most of the cases reported were women who were forced, by threat or violence, to perform sexual acts on someone. They would range from the on-the-street assault by a stranger, to a relationship gone sour. There would also be cases involving professionals like doctors and dentists abusing their standing to abuse a patient or even drug deals gone sour resulting in rape.

Now, having been a criminal defense attorney for more years than the mortal mind can remember, either the reality or my perspective has changed. Probably both.

The point is that we all know that “no” is supposed to mean know. When an aggressor disregards the “no”, there is no consent and so whatever happens is a sexual assault.

Many cases today, however, are not quite that simple. Further, the rules have been changed which confuses the situation even more.

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Most people have heard the term sexting by now. It’s a play-on-words, combining “sex” and “texting” to refer to sending and receiving lewd or suggestive images via smart phone or another electronic device. When sexting occurs between two consenting adults, no criminal offense is committed. However, when one or more of the parties involved is a minor, it’s an entirely different story. Criminal charges may even apply when both parties are under age.

Last week, the Washington State Supreme Court upheld a conviction for sexting-related child pornography charges. At first glance, that statement may not seem particularly unusual, but the details surrounding the case are anything but usual. At the time of the incident, the defendant was a minor. He also has Asperger’s syndrome, and the incriminating sext was a photo he sent of himself to an adult woman.

In 2013, the then 17-year-old boy texted a picture of his penis to a 22-year old woman. The photo was accompanied by explicit, and unsolicited, statements. The woman reported the texts and several harassing phone calls to the local Sheriff’s Office, and the boy was subsequently charged with distribution of child pornography, a felony. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

It is illegal to deal in any depiction of a child engaged in conduct that is deemed sexually explicit. Washington state law defines sexually explicit conduct as anything that depicts “genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer.”

“Subjecting of all Children to Felony Prosecution”

The state supreme court ruled that to “destroy the blight of child pornography everywhere, from production of the images to commercial gain” requires legislation that also pertains to minors who take explicit photos of themselves. Critics worry that, in the future, similar rulings will be extended to teens who consensually sext each other, and that this interpretation of the law will lead to the “subjecting of all children to felony prosecution.”

In fact, consensual teens have already been criminally prosecuted for their sexts. In 2015, a Colorado school found itself at the center of a major scandal. Dozens of students were sending lewd texts, many of which appeared to have been taken at the school. George Welsh, Superintendent of the scandalized Canon City Schools, was not surprised. “There isn’t a school in the United States probably at this point that hasn’t at some point dealt with the issue of sexting,” said Welsh. A Boston criminal defense lawyer can help you determine how to proceed if you’ve been charged with any type of crime.

The debate over criminalizing sexting focuses on the real purpose of child pornography laws, to protect children from unsavory adults. But if sexting between two consenting teens turns into a crime, what message are we sending? According to David Ball, law professor at Santa Clara University in CA, such rulings go against the basic tenets of criminal law. “You can’t be an accomplice to an act that has you as the victim,” said Ball, referring to two teens who were both charged with endangering a child. They also happened to be the victims in each others’ cases. Continue reading

Sexual assault is a serious crime, and MA punishes it harshly. It is loosely defined as the unwanted and offensive sexual touching of another. The type of touching can vary widely; forced penetration is one form of sexual assault, but so is slapping a woman’s buttocks without permission. In the example of forced penetration, the crime would likely be elevated to rape.

At Altman & Altman, LLP, we understand that humans make mistakes. Further, sometimes jealous or disgruntled ex-lovers – or individuals who wish to seek revenge – make false accusations. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with sexual assault.

Indecent Assault and Battery vs. Aggravated Sexual Assault

There are two types of sexual assault: indecent assault and battery, and aggravated sexual assault. In the aforementioned scenario, grabbing or slapping a woman’s buttocks without her permission would fall under the category of indecent assault and battery. If, however, the offender slapped the woman’s buttocks and pushed her to the ground, causing injury, the offender may be charged with aggravated indecent assault. If the injuries were so severe that the victim required medical attention, the charges would likely be elevated to aggravated sexual assault, which carries significantly harsher punishments. In any of the above scenarios, if the victim was forced, coerced, or manipulated into unwanted sexual contact, criminal charges will almost certainly follow.

Penalties for Sexual Assault

In MA, a conviction of sexual assault is likely to result in jail time and inclusion on the Massachusetts Sex Offender Registry. The following information provides additional details about the different types of indecent assault and battery and aggravated sexual assault crimes in MA, and the penalties offenders may face. A MA criminal defense attorney can help you protect your rights, reputation, and freedom if you’ve been charged with sexual assault or any type of criminal offense.

  • Indecent Assault and Battery when the victim is over the age of 14: This includes any touching that is “fundamentally offensive to contemporary moral values,” such as the touching of genitals, breasts, or buttocks. This crime may result in up to five years in prison.
  • Indecent Assault and Battery when the victim is under the age of 14: When the acts above are committed against a child under the age of 14, the penalties increase substantially. This is because a minor under the age of 14 cannot consent to any type of sexual touching. The penalty for this criminal act is up to 10 years in prison.
  • Indecent Assault and Battery when the victim has an intellectual disability: Penalties of up to 10 years in prison, with a minimum sentence of five years.
  • Indecent Assault and Battery when the victim is elderly or disabled: Penalties of up to 10 years in prison when the victim has permanent or long-term physical or mental impairments.
  • Aggravated Indecent Assault and Battery when the victim is under the age of 14: This is a felony offense and may carry a sentence of life in prison. The minimum sentence is 10 years.

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Five teens have been arrested and are facing charges for statutory rape in a case involving a single victim, a 16-year-old girl. The South Haven, Michigan teens, all 17 or 18 years of age, attend the same high school as the victim. The severity of the case has brought a lot of attention, but the fact that the defendants are all on the school’s varsity basketball team has made this case national news.

Another student informed a school counselor about the encounters between the five defendants and the victim. The police were notified following the student’s report, and each of the five teens was arraigned and released on $1,000 bond. While they await trial or the resolution of their charges, the teens have been permitted to return to classes. However, they have been suspended from the basketball team. A Boston defense lawyer can help you determine how to proceed if you’ve been charged with any type of sex offense.

What is Statutory Rape?

As details of this case are still limited, it is not known whether the acts were committed with the victim’s consent, or under coercion or force. But statutory rape doesn’t require force. Even consensual sex is a crime, if one of the participants is under age. If, however, force or coercion was used, the charges may be elevated to a more serious charge with more serious penalties and punishments. In MA, statutory rape is committed if a person engages in sexual acts with someone under the age of 16. However, in MA, statutory rape is charged as “rape of a child,” and carries stiff penalties, along with the need to register as a sex offender.

What are the Penalties for Statutory Rape?

Penalties for statutory rape vary widely. For example, the punishment for a 17-year-old who has consensual sex with his 15-year-old girlfriend is likely to be much less severe than for a 25-year-old man who has sex with a 12-year-old. Punishments can range from no jail time to life in prison. Sexual acts against a child are punished more severely if:

  • The child is under age 12 and the defendant is five or more years older.
  • The child is between 12 and 16 years of age and the defendant is ten or more years older.
  • The defendant is a doctor, teacher, clergy member, or social worker.

It is even illegal for a child under the age of 16 to have sexual intercourse with another child under that age. Therefore, in the case of a 14 and 15-year-old couple who choose to have sexual intercourse, both could be charged with a crime. Many states have something called a “Romeo and Juliet law” that holds that consensual sex with an underage individual is not considered statutory rape unless there is a certain age difference between the parties. But MA has not adopted the Romeo and Juliet law. So, as it stands, sexual intercourse with someone under age 16, regardless of the defendant’s age, is a crime. In addition to possible jail or prison time and fines, anyone convicted of a sex crime in MA must register as a sex offender. A MA defense attorney can help if you’ve been charged with rape of a child for a consensual relationship with someone close to your age. Continue reading

We have been discussing certain criminal justice truths as they apply to two high-profile matters. In one case, a dentist was charged with sexual assault. In the other, a dentist was charged with a drug-related fraud.

In both cases, the defendants are alleged to have abused their position of trust in order to perform their evil deeds.

Today, the Boston Globe , tells us of the arraignment in another such matter, this time playing out in Malden District Court.

This case involves 34-year-old Darnell K. Booth (hereinafter, the “Defendant”) stands accused of the rape of a 16-year-old Everett girl last month.

According to the Commonwealth, the Defendant was working as an Uber driver at the time the two met. He drove her in June and then allegedly contacted her through Snapchat. On July 5, she needed a ride to a summer school program.  Coincidentally, the Defendant contacted her on Snapchat to ask if she needed a ride.

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In my last blog, we discussed two pending cases involving Massachusetts dentists. One was charged for sexual assault and the other was for using his position to get drugs illegally.

We started discussing similarity “between the lines” with the two cases.  It comes down to the fact that they are both “high profile” cases.

Attorney Sam’s Take On The Changes Involved In High Profile Cases

For more years than I care to remember, I have handled “high profile” cases .

In the previous century, I began my professional career as a prosecutor in Brooklyn, New York. There was no shortage of high-profile criminal prosecutions. It was the 1980s, the early days of the crack epidemic, a high point in racial unrest and the changing of how much the media affected criminal cases. I saw from the point of view of the prosecutor the considerations and how they change when the matter is in the public Eye.

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