Commonwealth v. Fay (Lawyers Weekly No. 10-054-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11534   COMMONWEALTH  vs.  HAROLD FAY.     Hampden.     December 5, 2013.  ‑  March 21, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Sex Offender.  Open and Gross Lewdness and Lascivious Behavior.  Evidence, Sex offender.  Due Process of Law, Sex offender, Substantive rights.  Constitutional Law, Sex offender.  Words, “Menace,” “Mental abnormality.”       Petition for civil commitment filed in the Superior Court Department on March 24, 2011.   The case was heard by Mary‑Lou Rup, J.   The Supreme Judicial Court granted an application for direct appellate review.     John Fennel, Committee for Public Counsel Services, for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.     CORDY, J.  On October 15, 2012, at the conclusion of a jury-waived trial, the defendant was found to be a sexually dangerous person and committed to the Massachusetts Treatment Center pursuant to G. L. c. 123A, § 14 (d).  In support of her decision, the trial judge found that the defendant suffered from pedophilia and exhibitionism and that he was likely to reoffend against children.  She further found that, although the defendant was only likely to commit noncontact sexual offenses, such as open and gross lewdness, in the future, these offenses would “instill in his child victims a reasonable apprehension of being subjected to a contact sex offense,”  particularly where the defendant’s actions in the past exhibited luring, approaching, and confining behavior.  Thus, she held that the defendant was a “menace” as defined by this court in Commonwealth v. Suave, 460 Mass. 582, 588 (2011), and ordered him civilly committed. On appeal, the defendant first argues that the evidence was insufficient to support a finding that he is a “menace” to the health and safety of others.  He contends that the judge improperly considered evidence that he exhibited “confining” behavior based on a criminal charge of which he was acquitted, and that if his “confining” behavior had not been considered, evidence that he lured or approached the children he targeted would have been insufficient.  He further argues that, as a matter of law, he cannot be categorized as a sexually dangerous person within the meaning of G. L. c. 123A, where he is not likely to commit contact sex offenses in the future.  Finally, he argues that, if his actions do fall within the statute, his commitment violates his […]

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