2-11-2009 Massachusetts:
Why charge only the boy? Judges bitterly divided on issue
A sharply divided Supreme Judicial Court said yesterday that a 14-year-old boy accused of statutory rape may have been a victim of gender discrimination because authorities charged him and not the three underage girls with whom he allegedly had sex.
The case, which originated in Plymouth County, involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11.
"None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority. "Indeed, sexual behavior seemed to melt seamlessly into games of 'manhunt,' 'truth or dare,' and 'making out.' Some of it occurred with more than one complainant present."
The SJC issued its order in the case last fall and released the written opinion yesterday.
In its 3-to-2 ruling, the majority emphasized that statutory rape laws, which once exclusively protected girls, are now gender-neutral. The boy, the court said, has a constitutional right to see if Plymouth District Attorney Timothy J. Cruz's office discriminates against boys when prosecuting statutory rape cases.
The state's statutory rape laws say it is a crime for anyone of any gender under the age of 16 to have sex.
"Modern amendments leave no doubt about the Legislature's intent to protect all children under 16 years old from sexual abuse," Marshall wrote. This is not to say we are untroubled by the boy's alleged behavior, [but] the statutory rape law . . . makes clear that perpetrators of statutory rape may be either male or female."
The SJC ordered Cruz's office to give the boy's defense lawyer, Janice Bassil of Boston, statistics detailing how his office has handled statutory rape cases over the past five years.
Bassil said yesterday that Cruz's office has complied. But both she and a Cruz spokeswoman declined to release the data because the case is being handled in the juvenile court system.
Bassil said, however, that the information she has examined is encouraging her to seek the dismissal of all criminal complaints on the grounds that her client was selectively prosecuted because he is a boy.
"We are pursing a motion to dismiss on the basis of gender discrimination," she said. "People should be treated the same way under the law. You can't be a perpetrator and a victim, too."
Cruz endorsed the views of the dissenters, Justices Francis Spina and Judith Cowin. Writing for them, Spina pointed out that the boy was a high school student, while the girls were elementary school students. He was a football player, and the justices said he sometimes pressured the girls into sex acts.
"The gender difference here is purely incidental," Spina wrote. "The age difference and grade difference were the basis for the decision."
In a statement, Cruz said the court's majority is downplaying crucial details about the case, including the fact that the boy was older.
"There are three victims in this case who are two to three years younger and two grade levels behind the juvenile," Cruz said. "The facts as noted in the court's opinion are not only deeply troubling, but they also soundly support this prosecution."
Bassil said 38 states have "Romeo and Juliet" laws under which consensual sex among teenagers is treated less harshly than in Massachusetts, and she suggested that the Legislature update laws here.
"I'm not talking about anything involving force," Bassil said of the change in law. "It's mutual, it's consensual. Do you really want to prosecute this as a major felony sex offense?"
The Women's Rights Project and the Reproductive Freedom Project, which are part of the American Civil Liberties Union, filed briefs in support of the boy, said Sarah Wunsch, a lawyer in the ACLU's Boston office.
"We should not be enforcing the law based on stereotypical notions about girls as not being capable actors in the same way that boys are," Wunsch said. "They are doing what teenagers are doing today. They are fooling around sexually, and the girls are participants in the same way that boys are."
Wunsch also pointed out that the boy's father acted as the "good parent " and first alerted the girls' parents of the incidents and that his son is the only one facing a criminal sentence. "That sends a message that parents ought to keep their mouth shut about what they discover," she said.
Wunsch said statutory rape laws are rooted in an old concept that a daughter was the property of her father. Echoes of that thinking can be found today when prosecutors criminalize sexual activity involving girls, she said.
"Our view is that there is still a very strong pattern of district attorneys charging based on the notion of having to protect girls," Wunsch said. "But girls can enjoy sex and be sexually active. They are not simply victims."
The boy is facing nine charges, including three counts of statutory rape. He may be required to register with the Sex Offender Registry Board if convicted.
The community where the four children live and the names of the children involved were not released.
Bassil said the boy has been expelled from school because of the charges. She also said his parents - the father alerted the mother of one of the girls - are deeply troubled by what they see as an injustice being done to their son.
"His life has been derailed," Bassil said. "it's very hard to be a high school kid and not be in high school. Your whole life revolves around it." ..News Source.. by John R. Ellement and Andrew Ryan
February 11, 2009
MA- SJC sees possible bias in rape case
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As I read this and other related articles, the judges were not 'bitterly divided' as noted in the Boston.com article. Let's count them, three Supreme Justices sided with the boy; plus the Single Justice in a previous failed appeal by DA Cruz, plus the lower court judge on two noted appeals ruled in favor of the boy. Two Supreme Justices dissented. So five judges ruled in favor of the boy and two dissented. i.e. 70% of the judges who have reviewed the details and viewed the SAIN video interviews of the girls have ruled in favor of the boy. 70% in favor of the boy is not a bitter division! Add to that, the ALCU in Massachusetts and nationally through the New York office is siding with the boy.
The question in my mind is why is this case even in the courts wasting taxpayer money; per the SJC SLIP Opinion, the three girls admitted on video tape to the SAIN interviewer that the sexual activity/games (truth-or-dare) was consensual, all four kids were under the age of consent (16) in Massachusetts and therefore should be "protected by" not "prosecuted under" the statute; or inanely all should be charged as 'felon sex offenders'. That's a scary thought if this is the true intent of the cited statute as passed by the Massachusetts legislators. And, in my opinion, charging only the boy will clearly be a discriminatory embarrassment for DA Cruz, his staff, and the Clerk Magistrate.
In the end, again in my opinion, it is sadly the children, especially the boy, who will be emotionally scarred for life from the injustices evident in these gratuitous charges at the hands of an injudicious and discriminatory District Attorney.
Note: the boy's lawyer is a well known Boston defense attorney, so if she has seen the statistics and is 'compelled to fill a motion to dismiss' I would be willing to bet that the statistics do show that DA Cruz and his staff discriminate in these cases.
Based on the Massachusetts statute, the girl's have admitted to felony sex offenses against the minor boy in this case. They could well be charged and convicted as felony sex offenders for their statutory crimes against the boy in this case. The statute applies equally and does not discriminate between boys and girls.
Why would the mothers of these three girls even go to the police to begin with, this is clearly a family matter to parent the children, not prosecute. The father of the boy tried to do the right thing, and his son ends up facing multiple felony sex offender charges for playing truth-or-dare. Again, how inane!
Chief Justice Marshall and others got this one right. The two dissenting justices are in error, the Massachusetts statute does not support age difference as justification to charge the boy and not the girls in this case. The statute is clear and not in dispute; as inane as this outcome is to rational thinking. The Massachusetts legislation needs to correct this and adopt Romeo and Juliet exceptions just as 38 other states have already enacted.
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