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revision and are superseded by the advance sheets and bound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-12351
COMMONWEALTH vs. WILBUR W., a juvenile.
Essex. January 10, 2018. - April 25, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Rape. Strict Liability. Constitutional Law, Vagueness of
statute, Equal protection of laws. Due Process of Law,
Vagueness of statute, Selective prosecution. Selective
Prosecution.
Complaint received and sworn to in the Essex County
Division of the Juvenile Court Department on August 24, 2009.
The case was tried before José Sánchez, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Joseph Maggiacomo, III, for the juvenile.
Marina Moriarty, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Yale Yechiel N. Robinson, pro se.
Robert F. Hennessy & Merritt Schnipper for Youth Advocacy
Division of the Committee for Public Counsel Services.
Gary D. Buseck, Bennett H. Klein, & Patience Crozer for
GLBTQ Legal Advocates & Defenders & another.
Marsha L. Levick, Riya S. Shah, & Lisa Swaminathan, of
Pennsylvania, for Juvenile Law Center & another.
2
GAZIANO, J. The crime of statutory rape, G. L. c. 265,
§ 23, is a strict liability offense. To prove statutory rape,
the Commonwealth is required to establish that the accused had
sexual intercourse with a person who was less than sixteen years
old at the time. See Commonwealth v. Bernardo B., 453 Mass.
158, 172 (2009). As a matter of law, a person below the age of
sixteen is deemed incapable of consenting to sexual intercourse.
Therefore, lack of consent is not an element of the offense, and
the intent of the accused is not relevant. See G. L. c. 265,
§ 23; Commonwealth v. Miller, 385 Mass. 521, 522 (1982). When
two minors have consensual sexual relations, both of whom are
members of the class the statute is designed to protect, each
has committed a statutory rape. This case requires us to decide
whether, as applied to a juvenile offender under the age of
sixteen, a conviction of statutory rape was constitutional,
where the juvenile maintains that he was involved in consensual
sexual experimentation with another child.
In 2009, a delinquency complaint issued against the
juvenile, charging him with two counts of rape of a child by
force, G. L. c. 265, § 22A, and dissemination of child
pornography, G. L. c. 272, § 29B. At the time of the alleged
offenses, the juvenile was twelve years old and the victim was
eight years old. Following a trial in the Juvenile Court, a
3
jury found the juvenile delinquent on the lesser included
offenses of statutory rape. The juvenile filed a notice of
appeal from the adjudication of delinquency, and we allowed his
motion for direct appellate review.
The juvenile contends that enforcement of the strict
liability statutory rape charge against him violates his Federal
and State constitutional rights to due process and equal
protection. He argues that imposition of criminal liability on
a child for a strict liability offense, where the premise of the
offense is that a child under sixteen lacks the capacity to
understand and consent to the conduct, is fundamentally unfair.
The juvenile maintains that a child under sixteen cannot be
deemed to understand and assume the legal risks of engaging in
sexual activity with another child under the age of sixteen, as
the statute requires of an adult, and that the imposition of
criminal responsibility for peer-aged sexual experimentation is
contrary to the statutory purpose of protecting children from
sexual abuse. He also argues, for the first time on appeal,
that he should have been considered a victim of statutory rape,
and that the government wrongfully singled him out for
prosecution. The issues the juvenile raises as to
experimentation among consenting juveniles are not before us in
this case, where the victim testified that he was afraid and
felt compelled to comply with the juvenile's demands.
4
Accordingly, we conclude that, as applied in these
circumstances, enforcement of the statutory rape charge is
constitutional, and affirm the adjudication of delinquency.1
1. Background. To determine whether statutory rape is
constitutional, as applied to the juvenile's conduct, we examine
the evidence in the light most favorable to the Commonwealth.
See Commonwealth v. Oakes, 407 Mass. 92, 95 (1990); Commonwealth
v. Bohmer, 374 Mass. 368, 370 (1978). In the summer of 2009,
the victim was an eight year old third grader, who lived with
his father in a city near Boston. The victim met the juvenile,
who was twelve years old and a seventh grader, when the victim
moved into the neighborhood earlier that year. The victim and
the juvenile became friends. They played together at the park
and with other children in the neighborhood, and they played
video games at the victim's apartment. Carol,2 who had been
friends with the victim's mother, was his live-in caretaker.
Carol also watched the juvenile on occasion, and the juvenile
referred to her as "Grammy."
On August 10, 2009, as he had on previous occasions, the
juvenile visited the victim for a sleepover while the victim's
1 We acknowledge the amicus briefs submitted by the youth
advocacy division of the Committee for Public Counsel Services;
the Juvenile Law Center and the Children and Family Justice
Center; GLBTQ Legal Advocates & Defenders and the American Civil
Liberties Union of Massachusetts; and Yale Yechiel N. Robinson.
2 A pseudonym.
5
father was working a late shift. During the evening, the victim
and the juvenile went into the victim's bedroom to play a video
game. While both boys were on the bed taking turns using the
video game controller, the juvenile told the victim to stand
next to a bureau. The bureau, which was "the same height as
[the victim], maybe a little bit taller," was positioned on an
interior wall adjacent to the bedroom door, such that, when
standing in the space next to the bureau, the two boys were not
visible from the doorway. The victim did not want to do this,
but complied because the juvenile told him to do it.
The juvenile instructed the victim to "pull down [his]
pants" so that he could put his "penis" in the victim's "butt."
The victim was "shivering" and "scared." He testified:
Q.: "And what did you think or feel when he told you that?
A.: "Like, I was kinda like shivering, like, scared."
Q.: "Okay. And why were you scared?"
A.: " Because I didn't, like -- because I was, like, I
didn't like, like -- like, I was scared because --"
Q.: "Did you want to do that?"
A.: "No."
The juvenile pulled down his own pants, and told the victim
to put his mouth on the juvenile's penis. The victim complied
for "two seconds" because the juvenile was "bigger," and he was
afraid of what the juvenile would do to him. The juvenile then
6
inserted his penis in the victim's "butt." The victim testified
that it hurt, and he almost cried.3
Because the boys were too quiet, Carol announced she was
entering the room to check on them. The juvenile told the
victim to get on the bed. Both boys pulled up their pants and
sat on the bed. When Carol entered the room, she found them
sitting on the bed playing the video game. The victim did not
say anything to Carol that night because he did not want the
juvenile to punch him.
The victim's father drove the victim to day camp the next
morning. Before leaving for camp, the victim ran into Carol's
room to say goodbye, and she took his cellular telephone.
Later, she found a photograph of a boy's penis on the cellular
telephone. When Carol picked up the victim from camp, she asked
3 The juvenile points out that the victim's testimony on
cross-examination was not entirely consistent with his testimony
on direct examination, or during an earlier sexual abuse
intervention network (SAIN) interview, and the victim agreed on
cross-examination that he had described certain events
differently from how he had described them at the SAIN
interview. During cross-examination, specific portions of the
victim's SAIN interview were introduced as prior inconsistent
statements. The juvenile notes that, in addition to testifying
that he was scared because the juvenile was "bigger," and
because the victim thought that the juvenile "might do
something" if the victim did not comply, the victim also
testified that the reason he complied was "to get [the juvenile]
to stop asking"; that the juvenile did not hit or threaten the
victim; and did not push the victim behind the dresser. On
cross-examination, the victim also testified somewhat
differently about the juvenile's actions with his "butt," and
whether the juvenile's act "hurt."
7
him about the photograph. The victim told her that the juvenile
had taken it. Carol initially scolded the victim for having
inappropriate photographs on his telephone, and told him that he
"could get into a lot of trouble." During the drive home, the
victim asked, "Well, what does it mean when someone tries to put
their private into your butt?" Carol asked if someone had done
that to him. The victim "shook his head yes." Carol asked,
"Who?" The victim answered that it was the juvenile. Carol
reported the victim's statements to the victim's father and the
police.
At the close of the evidence, the judge instructed the jury
on rape of a child with force, pursuant to G. L. c. 265, § 22A,
including the theory of constructive force, and the lesser
included offense of statutory rape. He also instructed the jury
on dissemination of child pornography. The jury returned
delinquency findings on the lesser included offense of statutory
rape, and found the juvenile not delinquent on the charge of
dissemination of child pornography. The judge sentenced the
juvenile to three years of probation with special conditions.
Following an evidentiary hearing, the judge allowed the
juvenile's motion for relief from the obligation to register as
a sex offender, pursuant to G. L. c. 6, § 178E (f), finding that
the juvenile did not pose a risk of reoffending or a danger to
the public.
8
2. Discussion. The juvenile raises three arguments
concerning the constitutionality of statutory rape where both
the victim and the individual charged with the offense are
juveniles.4 First, he contends that his adjudication of
delinquency violates his right to the due process of law because
the Legislature did not intend to impose strict liability on a
person below the age of sixteen. Second, he contends that
statutory rape fosters arbitrary and discriminatory enforcement
and is therefore void for vagueness. Third, the juvenile
contends that he was unfairly selected for prosecution in
violation of his right to equal protection under the law.5
4 The juvenile did not assert these constitutional claims in
the Juvenile Court. As a general rule, we "decline to consider
constitutional issues raised for the first time on appeal in
order to avoid an unnecessary constitutional decision"
(quotation omitted). Commonwealth v. Guzman, 469 Mass. 492, 500
(2014). Here, however, we exercise our discretion to resolve
the constitutional issues because the record is fully developed,
and the appeal presents important questions of public concern.
See Gagnon, petitioner, 416 Mass. 775, 780 (1994).
5 The juvenile also asserts error in the judge's decision to
deny his motion for a required finding of not delinquent on the
charge of rape of a child by force. In denying the juvenile's
motion for a required finding, the judge stated, "As to the
forcible rape of a child, I will concede that the issue of
constructive force is a close one, but based on the testimony I
find that there is sufficient evidence to at least put that
issue before the jury." The juvenile argues that the evidence,
considered in the light most favorable to the Commonwealth, was
insufficient to prove the element of physical or constructive
force. Because the juvenile was acquitted of the charge, the
issue whether the Commonwealth proved constructive force is not
properly before us.
9
a. Due process challenge. General Laws c. 265, § 23, as
appearing in St. 1974, c. 474, § 3, provides: "Whoever
unlawfully has sexual intercourse or unnatural sexual
intercourse, and abuses a child under [sixteen] years of age,
shall be punished . . . ." In Commonwealth v. Gallant, 373
Mass. 577, 581-585 (1977), and Bernardo B., 453 Mass. at 170-
172, we traced the history of statutory rape from its English
common-law roots to the most recent revisions of G. L. c. 265,
§ 23, in 1974. Although G. L. c. 265, § 23, has evolved over
time, our long-standing interpretation of the statute is that it
imposes strict liability for anyone who engages in "sexual
intercourse or unnatural sexual intercourse" with a person who
is less than sixteen years old. See Commonwealth v. Murphy, 165
Mass. 66, 70 (1895). See, e.g., Miller, 385 Mass. at 522;
Commonwealth v. Moore, 359 Mass. 509, 514-515 (1971).
Accordingly, the only elements the Commonwealth is required to
prove are "(1) sexual intercourse or unnatural sexual
intercourse with (2) a child under sixteen years of age."
Bernardo B., supra at 172, quoting Miller, supra.
The juvenile contends that the imposition of strict
liability for statutory rape, as applied to his case, violates
due process rights secured by the United States Constitution and
10
the Massachusetts Declaration of Rights.6 He maintains that the
Legislature's decision to impose strict liability in cases of
statutory rape rests on two related policies: that vulnerable
children need to be protected from the dangers of sexual abuse,
and that adults assume the risk inherent in having sexual
relations with a child who is younger than the statutory age of
consent. See Murphy, 165 Mass. at 69-70 ("it is deemed best to
require everybody at his peril to ascertain whether his act
comes within the legislative prohibition"). See also United
States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991), cert.
denied, 502 U.S. 1042 (1992) (statutory rape laws protect
children from sexual abuse "by placing the risk of mistake as to
a child's age on an older, more mature person"). The juvenile
argues that, unlike an adult, an individual who is under the age
of sixteen has limited capacity to make reasoned choices or to
understand the consequences of his or her behavior. As a
result, he contends, the Legislature's rationale for imposing
strict liability "make[s] little sense" when applied against a
twelve year old engaged in peer-aged sexual experimentation.
6 A facial challenge, by contrast, would have required the
juvenile to prove that no set of circumstances exists under
which the statute would be valid. See United States v. Salerno,
481 U.S. 739, 745 (1987). This is a difficult burden to meet.
"A facial challenge to the constitutional validity of a statute
is the weakest form of challenge, and the one that is the least
likely to succeed." Blixt v. Blixt, 437 Mass. 649, 652 (2002),
cert. denied, 537 U.S. 1189 (2003).
11
i. Standard of review. Substantive due process prohibits
governmental conduct that "shocks the conscience" or infringes
on rights "implicit in the concept of ordered liberty" (citation
omitted). Commonwealth v. Fay, 467 Mass. 574, 583, cert.
denied, 135 S. Ct. 150 (2014). "In substantive due process
analysis, the nature of the individual interest at stake
determines the standard of review . . . ." Aime v.
Commonwealth, 414 Mass. 667, 673 (1993). If a statute uses a
suspect classification or implicates a fundamental right, we
apply strict judicial scrutiny. Goodridge v. Department of Pub.
Health, 440 Mass. 309, 330 (2003). See Doe v. Acton-Boxborough
Reg. Sch. Dist., 468 Mass. 64, 75 (2014) (classifications based
on gender, race, color, creed, and national origin considered
suspect); Gillespie v. Northampton, 460 Mass. 148, 153 (2011)
("fundamental right is one that is deeply rooted in this
Nation's history and tradition" [quotation and citation
omitted]). Under strict scrutiny analysis, a statute satisfies
due process only when it is "narrowly tailored to further a
legitimate and compelling governmental interest." Aime, supra.
When a statute is not subject to strict scrutiny in
considering a substantive due process challenge, it is subject
to rational basis review. Gillespie, 460 Mass. at 153. For due
process purposes, a statute has a rational basis if it "bears a
real and substantial relation to the public health, safety,
12
morals, or some other phase of the general welfare." Goodridge,
440 Mass. at 330. See Gillespie, supra ("a statute is
constitutionally sound if it is reasonably related to the
furtherance of a valid State interest"). In reviewing the
constitutionality of a statute, we are mindful that "all
rational presumptions are made in favor of the validity of every
legislative enactment." Commonwealth v. Finnigan, 326 Mass.
378, 379 (1950).
The juvenile has not argued that imposition of strict
liability for statutory rape violates a fundamental right,7 or
that he was subject to a suspect classification. We therefore
examine his claim that the legitimate purposes of statutory rape
7 Two of the amicus briefs do urge application of a strict
scrutiny standard of review in this case. The youth advocacy
division of the Committee for Public Council Services (CPCS)
urges this court to apply strict scrutiny to its due process
analysis based on the theory that enforcement of statutory rape
liability implicates a minor's fundamental right of privacy. To
support this argument, the brief cites Lawrence v. Texas, 539
U.S. 558, 578-579 (2003), in which the United States Supreme
Court extended constitutional privacy protections to "two adults
who, with full and mutual consent from each other," engaged in
same-sex intimate conduct. In that case, however, the Court
emphasized that the protected liberty interest did not extend to
minors and did "not involve persons who might be injured or
coerced." Id. at 578. In their joint amicus brief, GLBTQ Legal
Advocates & Defenders and the American Civil Liberties Union of
Massachusetts rely on decisions in other States recognizing that
statutory rape charges may interfere with a minor's protected
right to privacy. See B.B. v. State, 659 So. 2d 256, 258-260
(Fla. 1995); In re G.T., 170 Vt. 507, 515-518 (2000). We leave
the issue whether enforcement of statutory rape laws implicates
a fundamental privacy right of minors for another day, when it
is properly raised, and fully briefed, by the parties. See
Pineo v. Executive Council, 412 Mass. 31, 35 n.6 (1992).
13
strict liability are not served by his adjudication of
delinquency under the rational basis standard of review.
ii. Whether imposition of strict liability for statutory
rape where the perpetrator is under sixteen offends due process.
Although statutes that do not require proof of mens rea are
disfavored, see Staples v. United States, 511 U.S. 600, 606
(1994), the Legislature is vested with wide latitude to declare
what constitutes a crime; this includes the authority to create
strict liability offenses. See Commonwealth v. Peterson, 476
Mass. 163, 165 (2017); Commonwealth v. Chavis, 415 Mass. 703,
709 n.9 (1993); Commonwealth v. Alverez, 413 Mass. 224, 229-233
(1992). The Legislature's exercise of its authority to define
strict liability offenses extends to imposition of strict
liability for the offense of statutory rape. "Strict criminal
liability is not necessarily a denial of due process of law, and
in the case of statutory rape it is not." Miller, 385 Mass. at
525. See Commonwealth v. Knap, 412 Mass. 712, 715 (1992) (mens
rea is general principle of jurisprudence and not
constitutionally mandated in child sexual assault cases). See
also Morissette v. United States, 342 U.S. 246, 250-251 & n.8
(1952) (recognizing that, while guilt generally requires proof
of culpable mental state, exception imposing strict liability
for sexual offenses against children, designed to protect
children, is warranted).
14
We do not agree with the juvenile's argument that the
Legislature did not intend to prohibit anyone from having sexual
intercourse with a person below the age of sixteen. The
Legislature established an age of consent because children lack
the maturity to "understand the physical, mental, and emotional
consequences of intercourse." See Commonwealth v. Dunne, 394
Mass. 10, 20 n.7 (1985). More recently, we have noted that
there is "no doubt" that the Legislature enacted statutory rape
laws in order to "protect all children under sixteen years old
from sexual abuse." Bernardo B., 453 Mass. at 171. See
Gallant, 373 Mass. at 583.
Moreover, the facts in this case, considered in the light
most favorable to the Commonwealth, do not support the view, as
the juvenile suggests, that this was a case of juvenile
experimentation among peers rather than a case of sexual abuse.
To the contrary, the record at trial indicates that the juvenile
was the aggressor, who arranged the victim's position behind a
dresser in order to avoid detection. The jury were warranted in
finding that the victim, a boy four years younger than the
juvenile, complied with the juvenile's commands to stand next to
the bureau, pull down his pants, and perform oral sex on the
juvenile because he was frightened and did not want to risk
disobeying the juvenile's instructions. On the day after the
incident, the victim displayed his immaturity by asking, "Well,
15
what does it mean when someone tries to put their private into
your butt?" Given this, the juvenile's characterization of the
incident as that of consensual sexual experimentation is
unavailing.
The juvenile's arguments are unable to overcome the
presumption that the Legislature acted reasonably and rationally
in imposing strict liability for anyone who has sexual
intercourse with a child under the age of sixteen. There is a
rational basis for protecting all children from sexual abuse,
whether the offender is an adult or a juvenile under the age of
sixteen.
b. Arbitrary enforcement challenge. The juvenile argues
also that G. L. c. 265, § 23, is unconstitutionally vague within
the meaning of the due process clause of the Fourteenth
Amendment to the United States Constitution. "The principles of
the vagueness doctrine are well settled in our law."
Commonwealth v. Reyes, 464 Mass. 245, 248 (2013). Due process
requires that criminal statutes "define the criminal offense
[1] with sufficient definiteness that ordinary people can
understand what conduct is prohibited and [2] in a manner that
does not encourage arbitrary and discriminatory enforcement."
Skilling v. United States, 561 U.S. 358, 402-403 (2010), quoting
Kolender v. Lawson, 461 U.S. 352, 357 (1983). See Grayned v.
Rockford, 408 U.S. 104, 108 (1972); Commonwealth v. Quinn, 439
16
Mass. 492, 499-500 (2003). With respect to arbitrary
enforcement, the United States Supreme Court has observed that
"the most meaningful aspect of the vagueness doctrine is not
actual notice, but the other principal element of the doctrine -
- the requirement that a legislature establish minimal
guidelines to govern law enforcement." Smith v. Goguen, 415
U.S. 566, 574 (1974). See Kolender v. Lawson, supra at 358
("where the [L]egislature fails to provide such minimal
guidelines, a criminal statute may permit a standardless sweep
[that] allows policemen, prosecutors, and juries to pursue their
personal predilections" [quotation and citation omitted]);
Commonwealth v. McGhee, 472 Mass. 405, 414 (2015) (lack of
reasonable guidelines for law enforcement encourages arbitrary
arrests and prosecutions). "It is well established that
vagueness challenges to statutes which do not involve . . .
freedoms [under the First Amendment to the United States
Constitution] must be examined in light of the facts of the case
at hand." Gallant, 373 Mass. at 581, quoting United States v.
Powell, 423 U.S. 87, 92 (1975). See Commonwealth v. Adams, 389
Mass. 265, 271 (1983). See also Bohmer, 374 Mass. at 371 n.6
(1978) ("In the context of a vagueness challenge, the defendants
have no standing to assert the rights of others").
In Commonwealth v. Williams, 395 Mass. 302, 303-306 (1985),
for example, we considered a due process challenge on vagueness
17
grounds to the city of Boston's "sauntering and loitering"
ordinance. The ordinance prohibited sauntering and loitering
"in such a manner as to obstruct . . . travellers." Id. at 305.
We concluded that the ordinance was unconstitutionally vague and
arbitrary because it failed to set "minimal guidelines to govern
law enforcement." Id. at 306. Without standards to
"distinguish between the lawful conduct of mere sauntering and
loitering and that which escalates to obstructing travelers,"
police officers possessed unfettered discretion to decide which
individuals to charge. Id. See Kolender v. Lawson, 461 U.S. at
360-361 (statute requiring individuals to carry "'credible and
reliable' identification" unconstitutionally vague on its face
"because it encourages arbitrary enforcement by failing to
describe with sufficient particularity what a suspect may do in
order to satisfy the statute"); Papachristou v. Jacksonville,
405 U.S. 156, 167-171 (1972) (vagrancy ordinance void for
vagueness due to broad scope and imprecise terms); Commonwealth
v. Sefranka, 382 Mass. 108, 110 (1980) (term "lewd, wanton and
lascivious person" unconstitutionally vague).
The juvenile's challenge on vagueness grounds focuses on
the potential for arbitrary enforcement of the statutory rape
statute. He points out that, in instances of peer-aged,
consensual sexual experimentation, the line between victim and
offender is blurred. He argues that, because this case involved
18
an incident of sexual experimentation, the Commonwealth's
decision only to charge one of the willing participants with a
criminal offense "is the very definition of discriminatory
enforcement."
The Commonwealth points out, correctly, that the juvenile
is unable to demonstrate arbitrary enforcement in this case,
involving a frightened eight year old being compelled by the
commands of an individual four years his senior. As the
Commonwealth puts it, the juvenile's labeling of himself as both
offender and victim "is belied by the inconvenient facts of the
case." We discern no hint of arbitrary enforcement here,
because the prosecutor reasonably could have concluded that the
juvenile was not a victim of a sexual assault. Not only was
there a four-year age gap between the juvenile, a seventh
grader, and the victim, a third grader, but the juvenile
initiated the encounter by instructing the victim to go where
they would not be seen from the doorway. The juvenile then
ordered the victim to pull down his pants and to engage in oral
and then anal intercourse. The victim testified at different
points that, although he complied with the juvenile's commands,
he did not want to "do that," he was afraid of what the juvenile
would do to him if he did not comply, he was "scared," and he
was "shivering."
19
We are not persuaded by the cases from other jurisdictions
upon which the juvenile relies. See B.B. v. State, 659 So. 2d
256 (Fla. 1995); In re D.B., 129 Ohio St. 3d 104, cert. denied,
565 U.S. 1100 (2011); In the Interest of B.A.M., 806 A.2d 893
(Pa. Super. Ct. 2002); In re G.T., 170 Vt. 507 (2000). We note,
first, that these decisions are inapposite, as they involve
consensual sexual relations between peer-aged minors. In one
case, the Supreme Court of Florida found that an adjudication of
delinquency violated the juvenile's constitutional privacy
interests "as applied to this [sixteen year old]." See B.B.,
659 So. 2d at 260. In so holding, the court noted that the
State's sole interest was protecting the sixteen year old victim
from "the sexual activity itself," as opposed to protecting her
from sexual exploitation. Id. at 259-260. In another such
case, an intermediate Pennsylvania appellate court vacated an
adjudication of delinquency after concluding that a statute
designed to protect younger children from exploitation was not
intended to permit punishment of only one of two eleven year old
boys, who both willing participated in experimental sexual
intercourse. See In the Interest of B.A.M., 806 A.2d at 894,
898. Similarly, the Supreme Court of Vermont's holding in In re
G.T., 170 Vt. at 516-518, is inapplicable to nonconsensual or
coerced sexual acts.8 We note also that, in another case where
8 The reasoning in another case cited by the juvenile, In re
20
the facts are similar to the situation here, the court in the
other jurisdiction reached a conclusion similar to the one that
we reach in this case. See State v. Colton M., 366 Wis. 2d 119,
128-129 (Ct. App. 2015) (rejecting juvenile's arbitrary
enforcement claim where "record indicate[d] [the victim] was an
unwilling participant that had to be bribed, coerced, or
otherwise forced into sexual contact").
Although we agree with the juvenile's observation that it
is possible that a juvenile under the age of sixteen could be
both a victim and an offender in a statutory rape case, those
circumstances are not presented here.
c. Selective enforcement challenge. In addition, the
juvenile also raises an equal protection claim. He argues that
he and the victim were similarly situated as children under the
age of sixteen engaged in consensual acts of sexual
experimentation. In this view, the Commonwealth's decision to
single him out for prosecution violated his equal protection
rights secured by the Federal and State Constitutions. See
Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 229-230
D.B., 129 Ohio St. 3d at 104-105, 108-109, is unclear. In that
case, the Supreme Court of Ohio declared that a prosecutor's
decision to charge a juvenile was "the very definition of
discriminatory enforcement," but did not discuss the factors
that went into that decision. See id. at 109. Compare In re
Welfare of B.A.H., 845 N.W.2d 158, 164 n.4 (Minn.), cert.
denied, 135 S. Ct. 208 (2014) (declining to follow reasoning of
In re D.B. because Ohio court did not address reason that
prosecutor's charging decision was discriminatory).
21
(1983) (selective enforcement prohibited by Fourteenth Amendment
and arts. 1 and 10 of Massachusetts Declaration of Rights).
A district attorney is vested with "wide discretion in
determining whether to prosecute an individual." Commonwealth
v. Washington W., 457 Mass. 140, 142 (2010), quoting Bernardo
B., 453 Mass. at 167. "This broad discretion rests largely on
the recognition that the decision to prosecute is particularly
ill-suited to judicial review. Such factors as the strength of
the case, the prosecution's general deterrence value, the
[g]overnment's enforcement priorities, and the case's
relationship to the [g]overnment's overall enforcement plan are
not readily susceptible to the kind of analysis the courts are
competent to undertake." Wayte v. United States, 470 U.S. 598,
607 (1985).
Nonetheless, a prosecutor does not possess unbridled
authority to charge a citizen with a crime. Wayte, 470 U.S. at
608. "While some selectivity is permissible in criminal law
enforcement, the Federal and Massachusetts Constitutions
guarantee that the government will not proceed against an
individual based on an unjustifiable standard such as race,
religion, or other arbitrary classification" (quotation and
citation omitted). Washington W., 457 Mass. 140, 142. See
Franklin Fruit Co., 388 Mass. at 229-230; Commonwealth v. King,
374 Mass. 5, 20 (1977). It is the judiciary's "solemn duty" to
22
redress prosecutorial overreaching. Bernardo B., 453 Mass. at
161.
In Bernardo B., 453 Mass. at 168, we explained that a
defendant raising "a collateral attack on prosecutorial
decision-making" is required to make a "rigorous" showing in
order to overcome "the presumption of prosecutorial regularity."
Thus, the defendant bears the initial burden to "raise[] at
least a reasonable inference of impermissible discrimination,
including evidence that a broader class of persons than those
prosecuted violated the law, . . . that failure to prosecute was
either consistent or deliberate, . . . and that the decision not
to prosecute was based on an impermissible classification such
as race, religion, or sex" (quotation and citation omitted).
Id. If a defendant meets this prima facie showing, the case
must be dismissed unless the Commonwealth is able to rebut the
inference of selective prosecution. Id. A defendant raising a
selective prosecution claim may do so "by introducing
statistical evidence or other data demonstrating that similarly
situated suspects or defendants are treated differently by the
prosecutor on the basis of impermissible categorizations." Id.
Ordinarily, a defendant makes a threshold showing of
selective prosecution before trial, and seeks discovery from the
Commonwealth in order to advance his or her claim. See
Commonwealth v. Lora, 451 Mass. 425, 442 (2008). In
23
Bernardo B., 453 Mass. at 170, we addressed an allegation of
gender-based selective prosecution where "the boy and the three
[female] complaining witnesses appeared to have engaged in
mutually consensual acts of oral sex . . . [and] all four
children were under the age of consent." Based on the
juvenile's threshold showing, we held that the juvenile was
entitled to discovery in order to conduct a further
investigation concerning his selective prosecution claim. Id.
at 175-176.
The juvenile raises his argument regarding selective
prosecution for the first time on appeal. Based on the evidence
presented at trial, we conclude that he has not overcome the
presumption that the prosecution was initiated in good faith.
See Commonwealth v. Franklin, 376 Mass. 885, 894-895 (1978).
Unlike the juvenile in Bernardo B., there is no showing here
that the only distinction between the charged and uncharged
participants in consensual sexual conduct was some type of
impermissible classification such as gender, race, or religion.
As stated, the trial record does not support the juvenile's
contention that he and the victim were similarly situated
children under the age of sixteen. The record reveals that they
were not. The juvenile has not, therefore, raised a meritorious
claim of selective prosecution. We do not foreclose the
possibility that, in some other case involving two juveniles, on
24
different facts, a juvenile might be able to present a valid
claim of selective prosecution, but that is not this case.
Judgment affirmed.
GANTS, C.J. (concurring in the judgment). Under G. L.
c. 265, § 23, "[w]hoever unlawfully has sexual intercourse or
unnatural sexual intercourse, and abuses a child under [sixteen]
years of age, shall be punished by imprisonment in the [S]tate
prison for life or for any term of years or, except as otherwise
provided, for any term in a jail or house of correction."
Sexual intercourse with a child is a strict liability life
felony that requires registration as a sex offender unless the
sentencing judge relieves the defendant or delinquent child of
the obligation to register. See G. L. c. 6, § 178C (defining
"sex offense" as, inter alia, "rape and abuse of a child under
[§] 23"); G. L. c. 6, § 178E (f) (allowing judge to waive sex
offender registration requirement where circumstances of offense
and offender's criminal history indicate that offender "does not
pose a risk of reoffense or a danger to the public"). In the
absence of evidence of marriage,1 statutory rape requires proof
of only two elements: "(1) sexual intercourse or unnatural
sexual intercourse with (2) a child under sixteen years of age."
1 A minor under the age of eighteen may lawfully marry in
Massachusetts with the approval of a judge where the child's
parents or legal guardian consent to the marriage. See G. L.
c. 207, § 25. The word "unlawfully" in G. L. c. 265, § 23,
suggests that sexual intercourse may be lawful where the
defendant is legally married to the child under sixteen years of
age. See Commonwealth v. Chretien, 383 Mass. 123, 130 (1981)
("It is widely recognized that use of the word 'unlawful' in
rape statutes signifies the incorporation of the common law
spousal exclusion").
2
Ante at , quoting Commonwealth v. Bernardo B., 453 Mass. 158,
172 (2009). A defendant may not assert as a defense that he or
she reasonably believed that the child was sixteen years of age
or older, because the Legislature intended to exclude mistaken
belief as to the age of the victim as a defense to the crime.
See Commonwealth v. Miller, 385 Mass. 521, 523-524 (1982). In
essence, where an adult has sexual intercourse with a young
person, the adult acts at his or her peril in the event the
young person turns out to be less than sixteen years of age.
See Commonwealth v. Murphy, 165 Mass. 66, 69-70 (1895).
Where a sixteen year old has sexual intercourse with a
fifteen year old, there is no uncertainty in the law as to who
has committed the rape and who is the victim of the rape,
regardless of the circumstances of the sexual intercourse. Even
if the fifteen year old encouraged the sixteen year old to have
sexual intercourse, only the sixteen year old has committed the
crime; the law would not permit the fifteen year old to be
charged with aiding and abetting the rape. See Gebardi v.
United States, 287 U.S. 112, 123 (1932) ("It is not to be
supposed . . . that the acquiescence of a woman under the age of
consent would make her a co-conspirator with the man to commit
statutory rape upon herself"). See, e.g., United States v.
Amen, 831 F.2d 373, 381 (2d Cir. 1987), cert. denied, 485 U.S.
1021 (1988) ("When Congress assigns guilt to only one type of
3
participant in a transaction, it intends to leave the others
unpunished for the offense"). But if that same fifteen year old
were to engage in sexual intercourse with another fifteen year
old, that fifteen year old is no longer treated under the law as
a victim. Indeed, under § 23, both fifteen year olds would be
guilty of rape and abuse of a child -- each is both a
perpetrator of rape and a victim of rape, and their fate depends
entirely on whom the prosecutor chooses to prosecute because
conviction only requires proof of sexual intercourse.
The power of a prosecutor to determine who is a rapist and
who is a victim in such circumstances is truly vast. A survey
conducted by the United States Centers for Disease Control and
Prevention found that 24.1 per cent of ninth graders and 35.7
per cent of tenth graders reported having engaged in sexual
intercourse. See United States Centers For Disease Control and
Prevention, United States Department of Health and Human
Services, Youth Risk Behavior Surveillance -- United States,
2015, at 26 (2016), https://www.cdc.gov/healthyyouth/data/yrbs
/pdf/2015/ss6506_updated.pdf [https://perma.cc/EH88-VFCZ].
Another study commissioned by the United States Department of
Health and Human Services found that 8.1 per cent of females and
12.5 per cent of males between the ages of fifteen and seventeen
reported having engaged in oral sex but not sexual intercourse.
See Copen, Chandra, & Martinez, United States Department of
4
Health and Human Services, Prevalence and Timing of Oral Sex
with Opposite-Sex Partners Among Females and Males Aged 15-24
Years: United States, 2007-2010, Nat'l Health Statistics
Reports, no. 56, at 5 fig. 2 (2012), https://www.cdc.gov/nchs
/data/nhsr/nhsr056.pdf [https://perma.cc/47QX-MXBD]. In
Massachusetts, a 2015 report surveying middle and high school
students found that 14.2 per cent of ninth graders and 30.6 per
cent of tenth graders reported having had sexual intercourse.
See Department of Elementary and Secondary Education &
Department of Public Health, Health & Risk Behaviors of
Massachusetts Youth, Executive Summary, at 60 (2015),
http://www.mass.gov/eohhs/docs/dph/behavioral-risk/youth-health-
risk-report-2015.pdf [https://perma.cc/XC68-B4Y6]. Notably,
23.8 per cent of the surveyed tenth graders reported having had
sexual intercourse in the last three months. See id. The most
common age of students enrolled in tenth grade in the United
States is fifteen. See J.W. Davis & K. Bauman, School
Enrollment in the United States: 2008, at 6 (2011),
https://www.census.gov/prod/2011pubs/p20-564.pdf [https:
//perma.cc/2YYJ-YZDA] ("modal grade for [fifteen year olds] is
tenth grade").2
2 See J.H. v. Commonwealth, 479 Mass. 285, 292 n.3 (2018),
citing United States Centers for Disease Control and Prevention,
Substance Use and Sexual Risk Behavior Among Teens (2017),
https://www.cdc.gov/healthyyouth/substance-use/pdf/dash-
5
To be sure, some ninth and tenth graders are older than
sixteen, and these studies are silent as to whether the sexual
partners of these students were under or over sixteen years of
age. But we need not determine the precise percentage of
Massachusetts children under sixteen years of age who have had
sexual intercourse with another child who is under sixteen years
of age to recognize that, conservatively estimated, prosecutors
potentially have the ability to prosecute at least one in five
ninth and tenth graders for rape and abuse of a child.
The court, in evaluating whether § 23 is
unconstitutionally vague in violation of the due process clause
of the Fourteenth Amendment to the United States Constitution,
appropriately recognizes that the void-for-vagueness doctrine
encompasses two separate concerns: (1) fair notice, and (2)
arbitrary and discriminatory prosecutions. "To satisfy due
process, 'a penal statute [must] define the criminal offense [1]
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and [2] in a manner that does not
encourage arbitrary and discriminatory enforcement." Skilling
v. United States, 561 U.S. 358, 402-403 (2010), quoting Kolender
v. Lawson, 461 U.S. 352, 357 (1983). "Although the doctrine
substance-use-fact-sheet.pdf [https://perma.cc/Z4H6-TL9P]
("According to the 2015 National Youth Risk Behavior Survey
. . . [forty-one per cent] of high school students have . . .
had intercourse and [thirty per cent] of high school students
are currently sexually active").
6
focuses both on actual notice to citizens and arbitrary
enforcement," the United States Supreme Court has recognized
"that the more important aspect of the vagueness doctrine 'is
not actual notice, but the other principal element of the
doctrine -- the requirement that a legislature establish minimal
guidelines to govern law enforcement." Kolender, supra at 357-
358, quoting Smith v. Goguen, 415 U.S. 566, 574 (1974). "Where
the [L]egislature fails to provide such minimal guidelines, a
criminal statute may permit 'a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal
predilections.'" Kolender, supra at 358, quoting Smith, supra
at 575. See Commonwealth v. Gallant, 373 Mass. 577, 580 (1977)
("laws must provide explicit standards for those who apply them"
in order to avoid arbitrary and discriminatory enforcement
[citation omitted]).
Generally, the concerns about fair notice and arbitrary and
discriminatory enforcement go "hand in glove." For example,
where a statute made it a crime to fail to give a "'credible and
reliable' identification" to a police officer, Kolender, 461
U.S. at 353, the Supreme Court noted that the statute "vest[ed]
virtually complete discretion in the hands of the police to
determine whether the suspect has satisfied the statute and must
be permitted to go on his way in the absence of probable cause
to arrest," id. at 358, and "confer[red] on police a virtually
7
unrestrained power to arrest and charge persons with a
violation." Id. at 360, quoting Lewis v. New Orleans, 415 U.S.
130, 135 (1974) (Powell, J., concurring in result). Where
another statute made it a crime to "saunter[] and loiter[] 'in
such a manner as to obstruct . . . travellers'" (citation
omitted), Commonwealth v. Williams, 395 Mass. 302, 305 (1985),
we noted that the statute both "fail[ed] to provide a person of
common intelligence with sufficient notice of the offending
conduct," id., citing Papachristou v. Jacksonville, 405 U.S.
156, 164-165 (1972), and "fail[ed] to set minimal guidelines to
govern law enforcement." Id. at 306. Here, however, the
statute provides fair notice; any sexual intercourse with a
person under the age of sixteen is a rape. But the clarity of
the crime does not obviate the danger of arbitrary and
discriminatory enforcement where both participants in the sexual
intercourse are under the age of sixteen, and are therefore both
rapists and rape victims.
Historically, the crime of statutory rape used gender to
distinguish the perpetrator of the rape (the male) from the
victim of the rape (the female); until 1974, when G. L. c. 265,
§ 23, was amended, only sexual intercourse with "a female child
under 16 years of age" was a crime. Compare St. 1974, c. 474,
§ 3, with St. 1966, c. 291. The 1974 amendment removed the word
"female" and thereby eliminated any reference to the gender of
8
the victim in order to further the Legislature's interest in
protecting all children from sexual abuse. See Bernardo B., 453
Mass. at 171. But the Legislature's salutary interest in gender
neutrality left no guidelines in § 23, not even minimal
guidelines, as it is currently interpreted, to guide police and
prosecutors in distinguishing the perpetrator of the rape from
the victim of the rape when both participants in the sexual
intercourse are under the age of sixteen.
I emphasize the phrase "as it is currently interpreted"
because the language of § 23 does provide a means clearly to
distinguish the perpetrator of the rape from the victim, in that
§ 23 provides that "[w]hoever unlawfully has sexual intercourse
or unnatural sexual intercourse, and abuses a child under
[sixteen] years of age, shall be [guilty of a life felony]."
(emphasis added). Generally, it is a "cardinal principle" of
statutory construction that courts "must give effect, if
possible, to every clause and word of a statute" (citation
omitted). Loughrin v. United States, 134 S. Ct. 2384, 2390
(2014). See, e.g., Advocate Health Care Network v. Stapleton,
137 S. Ct. 1652, 1659 (2017) (noting that "surplusage canon"
presumes "that each word [the Legislature] uses is there for a
reason"); Matter of Civil Investigative Demand Addressed to
Yankee Milk, Inc., 372 Mass. 353, 358 (1977) ("established
principle of statutory construction that every word in a statute
9
should be given meaning"); Commonwealth v. Woods Hole, Martha's
Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967)
("[n]one of the words of a statute is to be regarded as
superfluous, but each [word] is to be given its ordinary meaning
. . . so that the enactment considered as a whole shall
constitute a consistent and harmonious statutory provision
capable of effectuating the presumed intention of the
Legislature" [citation omitted]). If we were to comply with
this "cardinal principle" of statutory construction, a required
element of proof for the crime of statutory rape would be a
finding of "abuse."
I recognize that we have not followed this "cardinal
principle" with respect to this crime, and have not required
proof of "abuse" as an element of the crime. Our case law makes
clear that, where the accused is over the age of sixteen, the
prosecution need prove only the elements of sexual intercourse
and the age of the victim, and need not prove a separate element
of abuse. See, e.g., Commonwealth v. Knap, 412 Mass. 712, 714
(1992); Commonwealth v. Dunne, 394 Mass. 10, 18 (1985); Miller,
385 Mass. at 522. The explanation derives from the historical
evolution of the statute. In 1692, the statute made it a crime
punishable by death "[i]f any man shall unlawfully and carnally
know and abuse any woman child, under the age of ten years."
See Province Laws 1692-1693, c. 19, § 12. Where the crime is
10
defined as carnal intercourse between a "man" and a girl under
the age of ten years, it is understandable why courts did not
read the statute to require a separate finding of abuse, because
abuse would inevitably be suffered by a girl under the age of
ten from sexual intercourse with a "man." See Black's Law
Dictionary 746 (1st ed. 1891) (defining "man" as "male of the
human species above the age of puberty"); Black's Law Dictionary
11 (2d ed. 1910) (defining "abuse . . . of a female child" as
"[a]n injury to the genital organs in an attempt at carnal
knowledge [i.e., sexual intercourse], falling short of actual
penetration. . . . But, according to other authorities, 'abuse'
is here equivalent to . . . rape"). Between 1886 and 1898, the
Legislature increased the age of consent from ten to thirteen,
then to fourteen, and then to sixteen years of age. Bernardo
B., 453 Mass. at 171. But the language of the statute --
"carnally know and abuse any woman child" -- was not altered.
Nor did this language change when the statute was amended in
1886 to delete "[i]f any man" and replace that phrase with
"[w]hoever," which broadened the scope of potential perpetrators
beyond post-pubescent "men." St. 1886, c. 305. Nor did this
language change in 1974 when the word "female" was deleted, so
that sexual intercourse with any child, male or female, under
the age of sixteen became statutory rape. In essence, "abuse"
was not interpreted to be a separate element because the act of
11
sexual intercourse with a child alone was understood to
constitute abuse, so abuse was implied as a matter of law.
This interpretation of the statute is permissible where the
defendant is over sixteen years of age and the victim is under
sixteen, because it is plain then who is the perpetrator of the
rape and who is the victim. But this interpretation cannot
survive where both participants in the sexual intercourse are
under sixteen, because that would mean that, as a matter of law,
both are deemed to have been abused. Where the Legislature
explicitly provides that the crime of statutory rape requires
the abuse of a child, and where such abuse is not implicit in
the act of sexual intercourse when both participants are under
the age of sixteen, it is reasonable in these circumstances to
require a finding of abuse as a separate and distinct element of
the crime of statutory rape. With such an element, the risk of
arbitrary enforcement that arises from the absence in § 23 of
even minimal guidelines to govern law enforcement when both
participants in the sexual intercourse are under sixteen would
be eliminated and the statute would be saved from constitutional
infirmity.
Because this would be a new interpretation of § 23, I would
require proof of the element of "abuse" only prospectively,
applying this requirement only to trials or pleas commenced
after the date of this opinion. I note that, although this is a
12
new interpretation of the elements of proof required to prove a
violation of § 23 where both participants in the sexual
intercourse are under the age of sixteen, I am aware of no
statutory rape case in Massachusetts where both participants in
the sexual intercourse were under the age of sixteen in which we
were asked to consider whether abuse is implicit in the act of
intercourse or must separately be proved under § 23. The
interpretation of the statute that treats the phrase "abuses a
child" as meaningless surplusage or as implied as a matter of
law has never before been analyzed by this court in this
context.
I concur in the judgment rather than dissent because I
agree with the court that, based on the facts of this case,
there is "no hint of arbitrary enforcement here, because the
prosecutor reasonably could have concluded that the juvenile was
not a victim of a sexual assault." Ante at . The prosecutor
charged the twelve year old juvenile with forcible rape of an
eight year old. Although the jury did not find the juvenile to
be delinquent on that charge, and instead found him delinquent
on the lesser included charge of statutory rape, the evidence
was sufficient to support a finding of forcible rape. I do not
suggest that proof of force would be necessary for a finding of
abuse. But, where there is substantial evidence of the use of
13
physical or constructive force, the evidence would be more than
sufficient to prove abuse.
It is worth noting that the court's analysis regarding
arbitrary enforcement is inconsistent with an interpretation of
§ 23 that would conclude as a matter of law that both children
have been abused solely because they engaged in the sexual
intercourse. By distinguishing between the perpetrator and the
"victim," the court is essentially recognizing that, where both
children who engaged in sexual intercourse were under the age of
sixteen, the prosecutor may only charge with rape the child who
was not abused and may not prosecute the child who was abused.
In essence, using the rubric of the "victim," the court is
requiring something akin to substantial evidence of abuse as a
necessary predicate for a prosecution in these circumstances,
but is not requiring a finding of abuse as an element of the
offense that must be found by a jury.
In sum, I agree with the court that, where both
participants in the sexual intercourse are under the age of
sixteen, the due process obligation to avoid arbitrary and
discriminatory enforcement requires more than mere proof of
sexual intercourse, which the court characterizes essentially as
reasonable grounds to believe that the juvenile is the
perpetrator rather than the victim. I differ with the court
insofar as I would acknowledge that, in doing so, the court is
14
essentially recognizing that § 23 requires some finding of abuse
where both participants in the sexual intercourse are under the
age of sixteen, and that such a finding cannot be implied as a
matter of law in such circumstances. And, where abuse cannot be
reasonably implied as a matter of law, I would make abuse an
element of the crime that must be found by a jury beyond a
reasonable doubt, rather than ask a judge to determine whether a
"prosecutor reasonably could have concluded that the juvenile
was not a victim of a sexual assault."3
For all these reasons, I concur only in the judgment.
3 I do not address the defendant's argument regarding
selective enforcement because I agree with the court that there
is no evidence of it in this case. The risk of arbitrary and
discriminatory enforcement under the void-for-vagueness doctrine
is a due process claim; a claim of selective enforcement asserts
an equal protection claim, and is subject to equal protection
analysis. See Commonwealth v. Bernardo B., 453 Mass. 158, 168-
169 (2009). "To bring a claim of selective prosecution
successfully, the defendant bears the initial burden to 'present
evidence which raises at least a reasonable inference of
impermissible discrimination,' including evidence that 'a
broader class of persons than those prosecuted violated the law,
. . . that failure to prosecute was either consistent or
deliberate, . . . and that the decision not to prosecute was
based on an impermissible classification such as race, religion,
or sex.'" Id. at 168, quoting Commonwealth v. Lora, 451 Mass.
425, 437 (2008). We have considered claims of selective
prosecution where there was evidence that the prosecution
engaged in impermissible discrimination based on race, see Lora,
supra at 436-439; gender, see Bernardo B., supra at 173; and
sexual orientation, see Commonwealth v. Washington W., 457 Mass.
140, 147 (2010). The juvenile here presents no evidence that
his prosecution in this case was influenced by his race, gender,
or sexual orientation, or by any other impermissible
classification.