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There Oughta Be A Law

The Supreme Judicial Court of Massachusetts must take further review and overturn Commonwealth v. Martinez, 2024 WL 1335265 (March 29, 2024). At a time when criminal law is pushed further than any of the founders ever anticipated, finding the specific intent offenses of attempted rape and attempted indecent assault and battery under these facts is absurd.

What happened in the case is horrible. If I believed in trigger warnings, I would insert one here. Every single thing about this case is revolting. Everything. Maybe there ought to be a law - but right now there is not and that is the problem with the opinion. Here are the basics – the defendant is held in custody at a correctional facility. We do not know where or for what reason or for how long. But, he is incarcerated.  As such, he has to know that all of his phonecalls are recorded. He just has to know that. And yet he had these conversations. With his daughter.

What conversations, you ask? Conversations in which he tells his 13-year-old daughter that he wants to have sex with her. Conversations in which he instructs his 13-year-old daughter how and when to masturbate. Conversations in which he instructs his recently 13-year-old, and now 14-year-old, daughter about how he will scoop her up and away from her caregiving grandmother and presumably have sex with her continually once he is out of prison. Oh – and she is not just his daughter, and not just a child, but she also has been diagnosed with mental illnesses, is unbearably vulnerable, and terribly lonely. Father of the year.

Every single thing about this defendant makes one’s skin crawl.

I have to insert here major kudos to his lawyers – it is not easy to represent defendants in some cases and the fact that he has zealous advocates assisting him is a testament to the greatness of our federal and state constitutions and to the defense bar.  I know it sounds crazy to people who do not get how rights work, but his lawyers deserve a ton of thanks for taking on this difficult case with such upsetting facts. Everyone is entitled to the best possible defense no matter the charges or the circumstances. This defendant is fortunate to have good counsel mounting his defense.

Without question, all of the recorded conversations about sex with his daughter amount to child abuse. Nothing about this relationship is acceptable on any level.

But – are these conversations sufficient to amount to a specific act in furtherance of a substantive crime that the defendant – by virtue of being held in a correctional facility - was not at liberty to commit? Well, let’s review the crime of attempt. In order to be convicted of attempting to commit a felony, the Commonwealth must prove a specific intent to commit the underlying felony and take a specific step in furtherance of committing the felony. Assuming here that the felony is indecent assault and battery on a child under the age of fourteen, G.L. ch. 265 sec. 13B.

The model jury instructions require that the Commonwealth prove:

(1)    That the alleged victim was not yet 14 years of age at the time of the alleged offense;

(2)    That the defendant committed an assault and battery on that child. Assault and battery is the intentional touching of another person without legal justification or excuse; and

(3)    That the assault and battery was “indecent” as that word is commonly understood, measured by common understanding and practices. An indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery may be “indecent” if it involves touching portions of the anatomy commonly thought private.

(4)    If the alleged victim is under 14 years of age, it is irrelevant whether or not (he) (she) consented to any touching.

Ok – in this case, even if we can impute the intent to commit an indecent assault and battery of his daughter, the defendant – because he is an involuntary guest of the state without the privilege of leaving the jail or prison where he is housed – could not possibly commit the crime. In other words, even if the conversation – just words – could amount to an act in furtherance…in furtherance of what, exactly? It makes no sense.

As to the assault and battery, the defendant did not touch the person of another without permission – he instructed his extraordinarily vulnerable child to touch herself. The evidence indicated that she did not touch herself as a result and there was nothing the defendant could do about that. That is, she could have told him she was doing everything he said and not do any of it; she could have said she did not do anything he said and then, when alone, done everything he said to do. At no time in any circumstance did the defendant touch another person.

Even if the defendant intended for his daughter to masturbate (which is not assault and battery), the reality is that he would not even know if she did or did not. And nor could the prosecutor and nor could a court and nor could a jury. And even if it could, to what end?

The most generous understanding of the Commonwealth's theory of the case is that the defendant’s intent was not to commit an assault and battery on her – his intent was for her to touch herself.  But, that is not a crime. It is certainly not assault and battery of any kind no matter how many weird, obscure cases the Appeals Court insisted on citing and squibbing in its bizarre opinion.

Masturbation on prison calls rabbit hole: Calls at prisons take place on public phones where there may be others waiting for the physical phone. They are all recorded. They are also timed. Inmates are aware of this. And, if they are not aware, every few minutes, a recording announces that the call is being recorded and there is another recording that comes on to tell the call participants how much times remains on the call. How anyone maintains an amorous mood through any and all of these intrusions is unclear. However, I can attest to have both read transcripts of and listened to actual calls of – for lack of a better phrase – phone sex between consenting adults on a recorded line. Empirically, in the calls I have heard and of which I have read transcripts, it is the person who is not incarcerated who describes the things s/he is doing to him/herself, often wishing aloud that the inmate were there to participate; the inmate just stays pretty silent or asks general questions. Whether the person who is not incarcerated is actually doing the things s/he claims to be doing is, frankly, unknown. Whether these calls are designed solely to improve the mood of the inmate and do not really involve any masturbation is up in the air. Either way, at any time, the unincarcerated person is in total control of his or her body. At no time – whether or not both parties desperately wish for it to occur – can the inmate be physically present and actually touch the unincarcerated person. Maybe it’s real; maybe it’s a talking  fantasy. But, throughout the call, a voice comes on to remind the participants that the call is recorded and to report how much time remains.  And the person on the other end of the line can always hang up or even block calls.

So, the Commonwealth simply cannot prove the defendant had the specific intent to commit an assault and battery of any kind because the defendant was behind bars and incapable of touching his daughter. We do not know where he is being held or how long he will be incarcerated on his current charges. It may be fanciful that he will be released while she is still a minor or that she will still be so desperately vulnerable or somehow without a restraining order against him. Whether she touched herself in the privacy of her own room or she never touched herself is way, way, way beyond what any court at any time in any part of the country should ever have access to learn.

The only possible way for the overt act of this offense to occur would be for the child to voluntarily masturbate by herself without anyone else present. That – no matter what weird religious teachings exist out there - is not a crime, not even a bad thing, and it’s not going to make her go blind. But, this is what the Appeals Court said: the completion of the crimes required that the child touch herself. The sexualized and manipulative telephone calls themselves were the overt acts that the defendant took toward the completion of the sexual assaults. Such “grooming” has as its ultimate goal “the formation of an emotional connection with the child and a reduction of the child’s inhibitions in order to prepare the child for sexual activity.”

The court is saying two things. It is saying that the crime is the child masturbating - even though no one, including the defendant, will know if that ever happened or why. That is, the child could masturbate on her own for her own reasons. And the defendant is not participating in that act. Also, the court avers that the crime is grooming "to prepare the child for sexual activity". Well, which is the crime? The court does not even know. Yes, certainly, grooming a child for sex is a crime - it is child abuse. Even though there already is a relationship between the father and daughter and he need not build that trust that a stranger might, under these facts, there is really no question that the Commonwealth made out a claim for reckless endangerment under G.L. ch. 265 sec. 13L. But that is not attempted rape or attempted indecent assault and battery. It just isn't. The court here says that the completion of the crime is masturbation. But, masturbation is not a crime, even if someone tells you to do it.

According to the child, she did not masturbate based on these conversations. But, if she had decided to masturbate at any point, what she might have been thinking about is beyond the purview of any court. Proof of crimes is proof beyond a reasonable doubt – the proof is not just of the defendant’s intent to commit the underlying crime which he could not commit because he was incarcerated, but also proof beyond a reasonable doubt of the specific intent to commit the crime (which was an impossibility – see above) by taking the act in furtherance which amounted to an explicit (and also gross) conversation. What is the burden on the Commonwealth? To put a child on the stand to say her father told her to masturbate but she did not do as he said, even though she thought about it? To prove what, exactly?

Even in a dystopian world where a person – physically very far distant from another without the ability to travel – could be convicted of a crime for instructing another person to touch him or herself – the crime is not attempted indecent assault and battery or forcible rape of a child. I am not sure what insane universe would create such a crime or what it would be called. I have no idea what the elements of such a crime would be. I have no idea how any government would even try to prove such a crime or what machinations of a jury instruction and deliberation would follow. But, even if this were a thing - which it is not - to prove attempt, the Commonwealth has to demonstrate a specific intent to commit both the act in furtherance and the underlying offense. Here, the underlying offense of indecent assault and battery or forcible rape is a physical impossibility, even if the defendant really, really wanted to have sex with his daughter and told her all about the sex they would have and how he would take her away and buy her anything she wanted in order to keep having sex, the current circumstances are such that that is not going to happen. Because there can be no meaningful specific intent to commit such a crime, there cannot be a specific intent to commit an act in furtherance thereof. The trial court was correct to dismiss these charges.

This is a tragic, sad, disturbing fact pattern. Putting this vulnerable child through the grand jury process and a trial is another form of prurient child abuse that the Plymouth County District Attorney should not be engaged in. What she needs is help and caring adults who do not make her a centerpiece for them – whether that is her deranged father or the prosecutor’s office. In this case, the grand jury returned a multitude of indictments – the only one that should stand is reckless endangerment of a child, G.L. ch. 265 sec. 13L. I get that this is a misdemeanor and not the felony the Commonwealth wants. But, it is the only charge that should be placed before a jury.

Even the incest charge, G.L. ch. 272 sec. 17 (not a subject of the case before the Appeals Court so arguably still going to trial) is really questionable here. That offense requires, at a minimum, “manual manipulation of the genitalia of another person's body”. The suggestion telling the child what she should do to masturbate just is not that, even if she did, in fact, masturbate in the way he told her to (which, again, she states she did not). Telling someone to touch themselves is not the same as “manual  manipulation” of “another person’s” genitalia. That is what the crime requires and there is just no way to get to that end under this fact pattern.

The defendant’s thoughts about sex and conversations with his child – let alone his mentally ill and uniquely vulnerable child - are reprehensible and societally unacceptable. There is just no other way to state it. But, what the Appeals Court is doing with the decision – whether it is trying to do good or not – is a very short and slippery slope toward criminalizing on the one hand thoughts and on the other hand masturbation (yes, of course, the pun is intended).  There are far better ways to protect this child from her abusive father and all of the adults in her life that have enabled this situation. And, in fairness to the defendant, he needs counseling and help to manage his unacceptable thoughts and desires as to his daughter. In any event, the state would do well to monitor any interaction, if not bar it, between him and his daughter until, at a minimum, she is legally an adult and then only if she seeks contact. But not by prosecuting him for these offenses.

The defendant should not stand trial for these charges. The precedent it would set is far too overreaching for any criminal court. if the Appeals Court does not do it en banc, and it appears that they will not, the Supreme Judicial Court must overturn this decision.

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