Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

8.4.FORMULATING YOUR SENTENCING RECOMMENDATION

8.4.1.Special Challenges in Sentencing Crimes of Domestic Violence and Sexual Assault

As with all cases, your recommendation for sentencing in domestic violence or sexual assault cases should be based on the facts of the case and should comport with sentences for other similar crimes. However, additional issues may arise:

1. The safety needs and desires of the victim and her family may warrant considerations of alternatives to incarceration.
2. The sentencing range for a domestic assault and battery may not reflect the lethality of the defendant’s crimes. You may have to work extra hard to get the court to consider the lethal, abusive nature of the crime and to subsequently impose a sentence which will adequately address the issue of public protection.
3. You may not agree with the victim’s views on sentencing, and in keeping with your duty to best protect the victim and the Commonwealth from the perpetrator, you may have to recommend a sentence which is at odds with the victim’s views.
When sentencing a defendant in a domestic violence case, the primary consideration must be the immediate and long-term safety of the victim. It is important to listen to the victim regarding her concerns about any recommended sentence and to ask the victim specific questions to elicit what types of conditions may best protect her. Probation sentences should contain special conditions responsive to the victim’s concerns, such as electronic monitoring of the defendant or a victim alert monitor. A probationary sentence with specific conditions and controls may keep a victim safer than a short-term jail sentence without follow-up supervision.
When jail is an appropriate sentence, try to insure that the defendant is incarcerated for a sufficient period of time to allow the victim the opportunity to take precautions for her safety upon the defendant’s release. Alternatively, recommend a split sentence to the house of correction, which will provide for a longer period of supervision. And whenever a defendant is incarcerated, make sure either you or an advocate has certified the victim to receive advance notification of the defendant’s release (CORI certification).

8.4.2.Standards for the Sentencing Judge

Sentencing judges should be guided by the goals of punishment, deterrence, rehabilitation, and public protection and have discretion to consider a broad range of information in imposing sentence. Letters v. Commonwealth, 346 Mass. 403, 405 (1963); Commonwealth v. Celeste, 358 Mass. 307 (1970).
A judge is required to explain why a defendant was not incarcerated for a violation of any provision of ch. 265, “the penalty for which includes imprisonment.” “[A] judge sitting in superior court or in a jury of six session who does not impose such sentence of imprisonment shall include in the record of the case specific reasons for not imposing a sentence of imprisonment.” Mass. Gen. Laws ch. 265, § 41.

8.4.3.Factors for the Prosecutor to Consider

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  Defendant’s Prior Record
  
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  Defendant’s Past Abuse
  
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  Defendant’s Admissions, Cooperation, Remorse
  
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  Injuries to the Victim
  
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  Lethality/Danger Assessment
  
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  Nature of the Offenses
  

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  Victim’s Views
  

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  Victim’s Safety
  
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  General Information About the Defendant
  

gathered from as many sources as possible: neighbors, past and present probation officers, police, co-workers, etc.

8.4.4.Sentencing Memoranda

In writing an effective sentencing memorandum:
(1) reveal the heinous nature of the crimes, despite their being

“just” assaults, or “just” A&B DWs;

(2) illustrate the interconnected nature of all of the defendant’s

abusive behaviors; and

(3) describe and “bring to life” the victim’s fears and the impact

of the defendant’s crimes.

An example of a sentencing memorandum which incorporates these aspects is included in the Appendices, Section 9.6.

8.5. POST-TRIAL COMMUNICATIONS

The Mass. Rules of Prof. Conduct, Rule 3.5(d), adopted in January 1998, governs prosecutors’ communications with jurors after the trial is over. Lawyers are not to initiate contact with jurors, directly or indirectly. If jurors contact you, you may respond; but you must refrain from asking any questions intended to harass or embarrass the juror. In no circumstances are you allowed to make inquiry regarding the deliberation process.

8.6.CIVIL COMMITMENT OF A SEXUALLY DANGEROUS PERSON

Massachusetts has a civil commitment law for sexually dangerous persons.

Pursuant to Mass. Gen. Laws ch. 123A, the District Attorney may file a civil commitment petition for the civil commitment of “sexually dangerous persons” who are likely to commit a sexual offense again if not confined to a secure facility.



A SEXUALLY DANGEROUS PEROSN (SDP):

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  Has been convicted of a sexual offense as a juvenile or an adult OR has been charged with a sexual offense and determined to be incompetent to stand trial; AND suffers from a mental abnormality or personality disorder which makes them likely to engage in sexual offenses if not confined to a secure facility;
  
• 
  OR
  
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  Has been previously adjudicated SDP and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, and as a result is likely to attack or otherwise inflict injury on victims;
  
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  May be flagged as a possible SDP six months prior to his release from a secure facility.
  

The procedure for committing a potential sexually dangerous person is as follows:

1. 
   The District Attorney determines a person is a potential SDP and files a commitment petition.
   

2. 
   An ex parte hearing is held. The standard is the same as that for probable cause to arrest.
   

3. 
   If the Court finds sufficient facts, a probable cause hearing is ordered.
   

(If the offender is scheduled for release before the probable cause hearing date, the Court may commit the person to the Massachusetts Treatment Center for a short period of time, after being shown sufficient facts to support a probable cause to arrest standard, in addition to hearing expert evidence.)

4. 
   The probable cause hearing is held. The standard is the same as that for a directed verdict.
   

5. 
   If probable cause is found the offender is committed to the Massachusetts Treatment Center for a 60-day evaluation.
   

6. 
   Evaluations of the offender are reported back to the Court within 45 days of the commitment.
   

7. 
   Within 14 days of the report, the District Attorney’s and/or the Attorney General’s office decides whether to withdraw the commitment petition or file the petition for trial.
   

8. 
   If a petition for trial is filed, and if good cause for an extension is not found, the trial will be held within 60 days after the trial petition is filed. (The offender remains committed to the Massachusetts Treatment Center during this time.)
   

9. 
   If a unanimous jury finds the offender to be a sexually dangerous person beyond a reasonable doubt, the offender is committed to the Massachusetts Treatment Center for one day to life.
   

10. 
    An offender who is committed to the Massachusetts Treatment Center as a sexually dangerous person is given a Section Nine hearing every year to determine whether he continues to be a sexually dangerous person.
    

The focus at a sexually dangerous person hearing is the state of mind of the defendant; it is not a retrial of the defendant and his crime. The District Attorney relies on expert witnesses, such as forensic psychologists, to prove that the defendant is a SDP.

The victim of a sexual offender will be notified by the Victim Service Unit of the Massachusetts Department of Correction:

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  If an offender is released to the community from a criminal commitment and the District Attorney has taken no action to declare him a SDP (notification is only automatic if the victim is registered with the Victim Service Unit, 1-866-6VICTIM);
  
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  If the offender is transferred to the Massachusetts Treatment Center while awaiting a further petition; and/or
  
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  If a Section Nine hearing is scheduled for a committed SDP (scheduled annually).
  

The victim’s role in the SDP process is minimal. The victim will be invited to sit with the District Attorney and will have the process explained to her. She may also state her opinion on whether the offender is a SDP. But in most instances, the victim will not be called to testify at the hearing or trial.

In addition to notifying and accompanying the victim, the Victim Service Unit will monitor any harassment that the inmate may perpetuate on the victim through letters or calls. The Victim Service Unit also maintains the victim’s current contact information.
For further comprehensive information on this topic, please see MDAA’s “SDP Resource Index.”

8.7. THE SEX OFFENDER REGISTRY BOARD AND PROSECUTING “FAILURE TO REGISTER” CASES

The Classification System:
The Sex Offender Registration and Community Notification Law, Mass. Gen. Laws ch. 6, §§ 78C-178Q, is administered by the Sex Offender Registry Board (“Board”). The purpose of the law is to assist law enforcement officials in tracking sex offenders living and/or working in Massachusetts and to notify the public of the presence of dangerous sex offenders in the community. The Board is responsible for sex offender registration, classification and community notification.
The law requires registration for adult and juvenile persons convicted or adjudicated of a sex offense who live. work or attend an institution of higher learning in Massachusetts. If such persons were released from incarceration, probation, parole, department of youth services custody or civil commitment on or after August 1, 1981, they must register as a sex offender.
The following offenses are “sex offenses” for the purposes of Mass. Gen. Laws ch. 6, §§ 178C-178Q and trigger a registration obligation:
Indecent assault & battery on a child under 14 (Mass. Gen. Laws ch. 265, § 13B);

Indecent assault & battery on a mentally retarded person (Mass. Gen. Laws ch. 265, § 13F);

Indecent assault & battery on a person age 14 or over (Mass. Gen. Laws ch. 265, § 13H);

Rape (Mass. Gen. Laws ch. 265, § 22);

Rape of a child <16 with force (Mass. Gen. Laws ch. 265, § 22A);

Rape and abuse of a child (Mass. Gen. Laws ch. 265, § 23);

Assault with intent to rape (Mass. Gen. Laws ch. 265, § 24);

Assault of a child with intent to rape (Mass. Gen. Laws ch. 265, § 24B);

Kidnapping of a child (Mass. Gen. Laws ch. 265, § 26);

Enticing a child under the age of 16 for the purposes of committing a crime (Mass. Gen. Laws ch. 265, § 26C);

Enticing away a person for prostitution or sexual intercourse (Mass. Gen. Laws ch. 272, § 2);

Drugging persons for sexual intercourse (Mass. Gen. Laws ch. 272, § 3);

Inducing a minor into prostitution (Mass. Gen. Laws ch. 272, § 4A);

Living off or sharing earnings of a minor prostitute(Mass. Gen. Laws ch. 272, § 4B);

Incestuous marriage or intercourse (Mass. Gen. Laws ch. 272, § 17);

Disseminating to a minor material harmful to a minor (Mass. Gen. Laws ch. 272, § 28);

Posing or exhibiting a child in a state of nudity (Mass. Gen. Laws ch. 272, §

29A);

Dissemination of visual material of a child in a state of nudity or sexual conduct (Mass. Gen. Laws ch. 272, § 29B);

Possession of child pornography (Mass. Gen. Laws ch. 272, § 29C);

Unnatural and lascivious acts with a child under 16 (Mass. Gen. Laws ch. 272, § 35A);

Aggravated Rape (Mass. Gen. Laws ch. 277, § 39);

2^nd/Subseq. Open and Gross lewdness and lasciviouss behavior (Mass. Gen. Laws ch. 272, § 16);

Attempts to commit a violation of any of these sections pursuant to Mass. Gen. Laws ch. 274, § 6.

Violation of a similar statute in another state will also trigger the registration requirement.
The offenders are classified by levels.
Level One Offenders

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  pose a low risk of recidivism and degree of dangerousness
  
• 
  the classification information is for law enforcement only; the public does not have access to these offenders’ information
  

Level Two Offenders

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  pose a moderate level of danger
  
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  the public may request sex offender information from police or the Board about Level Two Offenders
  
• 
  
  

Level Three Offenders

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  pose a high risk and danger
  
• 
  there is active community notification, including posting on the SORB’s internet website (http://www.mass.gov/sorb)
  

The classification review is conducted by the Board. Victims (and parent/guardians of child victims) may submit written victim impact statements to influence the Board’s decision.

Members of the public may obtain information from the sex offender registry:

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  The person asking for the information must be at least 18 years old.
  
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  The person asking for the information must be seeking it for his or her own protection, the protection of a child under 18 years of age, or for the protection of another person for whom the requesting person has responsibility, care or custody.
  

A person may request registry information from the police by:

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  Identifying a specific individual by name or personal identifying information;
  
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  Inquiring whether any sex offenders live or work on a specific street address within that city or town;
  
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  Inquiring whether any sex offenders live, works or attends an institution of higher learning within the same city or town of a specific address, including but not limited to, the address of a residence, school, day-care center, playground or other identified address; or
  
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  Inquiring in another city or town whether any sex offenders live or work within that city or town.
  

Upon such an inquiry, the police will give the following information:

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  The name of the sex offender;
  
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  The offender’s home and work addresses;
  
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  The name and address of the institution of higher learning where the sex offender works or is enrolled as a student (if applicable);
  
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  The offense(s) for which the offender was convicted or adjudicated and the date(s) of the conviction(s) or adjudications(s);
  
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  The offenders age, sex, race, height, weight, eye and hair color; and
  
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  A photograph of the sex offender, if available.
  

Information is also available from the Board by mail, when the person requesting the information identifies an individual by name, date of birth or sufficient identifying characteristics. The Board will provide a report that includes whether the person identified is a sex offender with an obligation to register the offenses, and the date(s) of the conviction(s) or adjudication(s). Forms for requesting information from the Board are available on the Board’s Internet website at http://www.mass.gov/EOPS/docs/sorb/request_tosorb.pdf.

There is also a national registry website, located at www.nsopr.gov, which is coordinated by the Department of Justice as a cooperative effort between the state agencies hosting public sexual offender registries and the federal government to provide a search tool, allowing users to obtain information about sex offenders through a number of search options.
The law does not prohibit the secondary dissemination of registry information.
It is a criminal offense to use registry information to commit or threaten to commit a crime or to illegally discriminate or harass an offender.
Prosecuting “Failure to Register” Cases
Once the classification process is completed, numerous efforts are made to notify the convicted sex offender of his obligations under the Sex Offender Registry Law, G.L. c. 6, sections 178C-178Q. All unregistered sex offenders are considered in “violation” on the Criminal Justice Information System (“CJIS”); and police officers may now arrest them for failing to comply with the statute. Mass. Gen. Laws ch. 6, §§ 178H, 178P.
When prosecuting Level Two and Level Three offenders, prosecutors should seek registration documentation from the police department that is responsible for registering the offender. In the case of unclassified or Level One offenders, prosecutors should seek evidence of registration evidence (or lack thereof) from the SORB by submitting the request in writing to:
Keeper of the Records

Registration Unit

Sex Offender Registry Board

P.O. Box 4547

Salem, Massachusetts 01970

Fax: [phone]

For further information on how to prosecute these cases, see appendix section 9.7.3.

9.APPENDICES

9.1. APPENDICES TO SECTION ONE, “BACKGROUND INFORMATION”

9.1.1.Massachusetts Policy for Law Enforcement Response to Domestic Violence (Law Enforcement Guidelines)

9.1.2.Massachusetts Policy for Law Enforcement Response to Sexual Assault

9.1.3.Complaint for Protection from Abuse

9.1.4.Abuse Prevention Order

9.1.5.Abuse Prevention Form (After Hours)

9.1.6.Defendant Information Form

9.1.7.Confidential Information Form

9.1.8.MOVA's Stalking Incident Log

9.1.9.An Act Relative to Harassment Prevention Orders

9.1.10.Amendments to c. 258E 2010

9.1.11.All Court Forms for c. 258E

9.1.12.District Court c.258E Memo

9.1.13.Info Sheet at Court for 258E

9.1.14.Intake Sheet 258E Juvenile

9.2. APPENDICES TO SECTION TWO, “VICTIM ADVOCACY”

9.2.1.Risk Benefit Analysis for Children Testifying in Domestic Violence Cases

9.2.2.MOVA's Safety Plan Information

9.3.APPENDICES TO SECTION THREE, “ ASSESSMENT & INVESTIGATION”

9.3.1.Sample Grand Jury Subpoena

9.3.2.Sample Preservation Letter

9.3.3.Sample Application and 2703D Order

9.3.4.Sample Search Warrant Application and Affidavit

9.3.5.Sample Appendix For Search Items in Support of Search Warrant Application

9.3.6.Sample Exhibit 1 in Support of Search Warrant Application

9.3.7.Sample Exhibit 2 in Support of Search Warrant Application

9.3.8.Sample Pen Register and Trap and Trace Application and Order

9.3.9.Sample Language for Search Warrants and Accompanying Affidavits

9.3.10.E Mail Tutorial How to Capture IP Addresses

9.3.11.Sexual Assault Evidence Collection Kit Instructions

9.3.12.Sexual Assault Evidence Collection Kit Forms 1-6

9.3.13.Provider Sexual Crime Report Form (PSCR)

9.4.APPENDICES TO SECTION FOUR, “ INITIATING THE PROSECUTION”

9.4.1.Order of Pretrial Detention Court FormCourt Form: Order of Pretrial Detention

9.4.2.Order of Conditional Release Court Form

9.5.APPENDICES TO SECTION FIVE, “ DISCOVERY”

9.5.1.SJC Revised Model Forms, Notices, Summonses

9.6.APPENDICES TO SECTION SEVEN, “TRIAL STRATEGIES”

9.6.1.Model Jury Instructions for Rape, Aggravated Rape and Assault with Intent to Rape

9.6.2.Suggestions for Witnesses

9.6.3.Sample Cross for Recanting, Minimizing or Reluctant Victim

9.7.APPENDICES TO SECTION EIGHT, “POST-CONVICTION”

9.7.1.Sample Sentencing Memorandum

9.7.2.Differences Between Anger Management and Certified Batterer Intervention Programs

9.7.3.Prosecutors' Guide to Massachusetts Sex Offender Registry Law

1 As of January, 2006, the national statistics cited above are still currently the most recent data available.

2 After Crawford, the SJC defined testimonial evidence by setting forth a “testimonial per se” and “testimonial in fact” test on August 29, 2005 in Commonwealth v. Gonsalves, 445 Mass. 1 (2005). In Gonsalves, the Court held that statements produced from police interrogation were testimonial and therefore inadmissible unless the purpose of the questioning was to secure a volatile scene or to determine the need for medical care. See Gonsalves, 445 Mass. at 10-13. Even if the statements qualified under an exception, the determination had to be made whether the statements were “testimonial in fact” (the “proper inquiry” is “whether a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting a crime. Id. at 12-13. On June 19, 2006 the U.S. Supreme Court issued its decision in Davis v. Washington and Hammon v. Indiana, 547 U.S. ____, 126 S.Ct. 2266 (2006), which supersedes the Gonsalves definition of “testimonial.”

3 Likewise, in Commonwealth v. Galicia, 447 Mass. 737 (2006) the SJC held that statements made by the victim to the second police officer at the scene were inadmissible because it was clear the emergency had already passed. Id.

4 After Crawford, the SJC defined testimonial evidence by setting forth a “testimonial per se” and “testimonial in fact” test in Commonwealth v. Gonsalves, 445 Mass. 1 (2005). However, both Crawford and Gonsalves left open the question regarding the admissibility of 911 calls. Id. at 9, n.4. In 2005, the United States Court of Appeals for the First Circuit held that 911 calls were not testimonial because a reasonable person in the declarant’s position would not have the capacity to know her statements would be used in a prosecution or investigation of a crime. United States v. Brito, 427 F.3d 53, 62-63 (2005). Following Brito, the U.S. Supreme Court issued its decision in Davis v. Washington and Hammon v. Indiana on June 19, 2006 which says nothing in conflict with Brito.

5 Although it is an open question whether the Pagan opinion requires it, some District Attorneys Offices have taken the extra precautionary step of presenting a “community parole supervision for life” indictment to the grand jury, in addition to the indictment for the most recent sex offense as a repeat offender.