A judge committed the defendant to the Massachusetts Treatment Center as a sexually dangerous person under Chapter 123A, finding that his history of voyeurism and exhibitionism, combined with a likelihood of reoffending through similar noncontact offenses, made him a menace to public health and safety. The Appeals Court affirmed.
The Supreme Judicial Court vacated and remanded. Although the defendant’s dangerousness finding was not itself wrong, the judge made it without the benefit of the court’s intervening decision in Commonwealth v. Suave, which established that to prove a defendant is a menace based on noncontact sexual offenses, the Commonwealth must show that his predicted future conduct will cause victims to reasonably apprehend being subjected to a contact crime. Generalized fear or psychological harm alone does not suffice. Because the trial judge did not apply the Suave framework, the case must return to the trial court for reconsideration under the correct legal standard. The court left open whether civil commitment based solely on noncontact offenses would violate substantive due process rights.
The full text of the opinion follows below. Slip opinions are subject to formal revision; the official version is published in the official reports.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
SJC‑11486
COMMONWEALTH vs. DANIEL D. ALMEIDA.
March 21, 2014.
Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Substantive rights. Evidence, Sex offender. Practice, Civil, Sex offender, Findings by judge. Words, “Menace.”
Following a jury-waived trial, a judge in the Superior Court determined that the defendant is a sexually dangerous person and committed him to the Massachusetts Treatment Center pursuant to G. L. c. 123A, § 14 (d).[1] The judge concluded that the defendant suffers from a mental abnormality that manifests itself in behavior including voyeurism and exhibitionism, and that the defendant is reasonably likely to reoffend by engaging in those same types of behaviors in the future.[2] As the judge noted, the defendant’s sexual offenses are noncontact offenses. He nonetheless concluded that the defendant is likely to engage in sexual offenses in the future “to a degree that makes him a menace to the health and safety of other persons” if he is not confined to a secure facility. The judge also concluded that civil commitment on this basis did not violate the defendant’s substantive due process rights. The Appeals Court affirmed, see Commonwealth v. Almeida, 83 Mass. App. Ct. 451 (2013), and we granted the defendant’s application for further appellate review.
At the time of the defendant’s trial, this court had not yet decided Commonwealth v. Suave, 460 Mass. 582 (2011) (Suave), in which we considered, for the first time, “whether G. L. c. 123A, properly construed, permits a finding of sexual dangerousness based on an individual’s history of committing noncontact sexual offenses and his likelihood of committing only noncontact offenses in the future.” Id. at 585-586. We concluded that it could, and, on the issue whether a defendant is a “menace,” stated that “the Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.” Id. at 588. We ultimately held in the Suave case that the defendant’s past and predicted future sexual behavior did not support a finding that he was a menace. Id. at 589. The Suave case thus does not itself provide an example of a defendant who was found to be sexually dangerous on the basis of past and predicted noncontact offenses. Commonwealth v. Fay, ante (2014) (Fay), however, which we also decide today, does. In that case we conclude that there was ample evidence to support the judge’s determination that the defendant is a menace — on the basis of his past and predicted behavior involving only noncontact offenses, and child victims — and a sexually dangerous person. Id. at .
Because we had not yet decided the Suave case at the time of the defendant’s trial in this case, the judge here did not have the benefit of, and did not make his findings pursuant to, that decision. Therefore, although the judge did conclude that the defendant is a menace, and sexually dangerous, he did not do so within the Suave framework. He did not, in other words, make any finding that the defendant is a menace on the specific basis that the defendant’s predicted future noncontact offenses are likely to instill in his victims “a reasonable apprehension of being subjected to a contact sex crime.” Suave, supra. See Fay, supra at . For that reason, the case must be remanded to the trial court for further consideration in light of Suave.
Because the case must be remanded, we turn briefly to the other issue addressed by the parties, regarding whether civil commitment of the defendant, who has committed, and is predicted to commit in the future, only noncontact offenses would violate his substantive due process rights. The judge concluded that it would not, but as discussed, the judge’s assessment that the defendant is sexually dangerous was conducted within a framework that is no longer applicable. Because the constitutional question need be answered only if there is first a determination that the defendant is sexually dangerous, whether civil commitment of the defendant in this case would violate his constitutional rights remains an open question. Although we hold today in the Fay case that the civil commitment of the defendant in that case does not violate his substantive due process rights, that decision does not “define the outer contours of what either the Federal or Massachusetts Constitution would permit with respect to the commitment of individuals found to be sexually dangerous,” Fay, supra at , and does not answer the constitutional question here.
For the reasons stated herein, the judge’s decision is vacated and the case remanded for further proceedings consistent with this decision.
So ordered.
Harry L. Miles for the defendant.
Mary O’Neil, Assistant District Attorney, for the Commonwealth.
[1] General Laws c. 123A, § 1, defines a sexually dangerous person as someone who (1) has been “convicted of . . . a sexual offense,” as defined in § 1; (2) “suffers from a mental abnormality or personality disorder,” as defined in § 1; and (3) as a result is “likely to engage in sexual offenses if not confined to a secure facility.” Only the second factor is at issue here, and, as to that, only whether the defendant is a “menace” for purposes of determining whether he has a mental abnormality. See Commonwealth v. Suave, 460 Mass. 582, 587 (2011) (explaining that term “mental abnormality” contains both medical and legal aspects and that legal aspect is whether defendant’s disorder renders him menace to health and safety of others). See also Commonwealth v. Fay, ante (2014).
[2] Details of the defendant’s past sexual offenses, his predicted future conduct, and the trial judge’s findings are set forth in Commonwealth v. Almeida, 83 Mass. App. Ct. 451, 454-457 (2013).