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SJC-12536
SJC-12540
WILLIAM SCIONE vs. COMMONWEALTH.
COMMONWEALTH vs. DAVID W. BARNES.
Suffolk. September 7, 2018. - January 15, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
Pretrial Detention. Rape. Destructive or Incendiary Device or
Substance. Constitutional Law, Preventive detention,
Vagueness of statute. Statute, Validity, Construction.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 26, 2018.
The case was heard by Kafker, J.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 11, 2018.
The case was reported by Gaziano, J.
Steven Van Dyke, Committee for Public Counsel Services
(Patrick Levin, Committee for Public Counsel Services, also
present) for William Scione.
Christopher B. Coughlin (Alexander C. Conley also present)
for David W. Barnes.
Catherine Langevin Semel & Marina Moriarty, Assistant
District Attorneys, for the Commonwealth.
2
BUDD, J. Here we are called upon to determine whether
G. L. c. 276, § 58A (§ 58A), the pretrial detention statute, may
be applied to David W. Barnes and William Scione, charged with
violating G. L. c. 265, § 23A (§ 23A) (rape of child aggravated
by age difference, i.e., statutory rape), and G. L. c. 266,
§ 102A (§ 102A) (use of incendiary device), respectively. We
conclude that § 23A does not qualify as a predicate offense
under § 58A in its current form,1 and that, depending upon the
circumstances, § 102A may (and, in this case, does) so qualify.
1. Statutory scheme of § 58A. Section 58A, which provides
for the pretrial detention of certain defendants, "seek[s]
systematically to identify those who may present a danger to
society and to incapacitate them before that danger may be
realized" (citation omitted). Mendonza v. Commonwealth, 423
Mass. 771, 780 (1996). The Commonwealth may move for a
dangerousness hearing pursuant to § 58A if a defendant has been
charged with one or more predicate offenses as defined under the
statute. G. L. c. 276, § 58A (4).
1 We note that on September 6, 2018, Governor Charles D.
Baker sent the Legislature a proposed bill titled, "An Act to
protect the Commonwealth from dangerous persons." If enacted,
this legislation would, among other things, amend G. L. c. 276,
§ 58A (§ 58A), to include G. L. c. 265, § 23A (§ 23A), as an
enumerated offense. See Letter from Governor Charles D. Baker
to Senate and House of Representatives, at 6-7 (Sept. 6, 2018),
https://www.mass.gov/files/documents/2018/09/06/Dangerous%20Pers
ons%20Letter%20and%20Bill%20Text.pdf [https://perma.cc/6UG8-
5B62].
3
If an individual has been charged with a predicate offense
as defined by § 58A, a hearing may be held to determine whether
the individual should be released either on personal
recognizance, under particular conditions, or not at all. G. L.
c. 276, § 58A (2). A judge may order pretrial detention if he
or she finds that the Commonwealth has established by clear and
convincing evidence that "no conditions of release will
reasonably assure the safety of any other person or the
community." G. L. c. 276, § 58A (3).
Predicate offenses under § 58A either are specifically
enumerated in the statute2 or fall within one (or more) of the
following categories: (1) those felonies that "ha[ve] as an
element of the offense the use, attempted use or threatened use
of physical force against the person of another" (force clause);
(2) "any other felony that, by its nature, involves a
substantial risk that physical force against the person of
another may result" (residual clause); or (3) "a misdemeanor or
2 The enumerated offenses in § 58A (1) include the
following: "the crimes of burglary and arson whether or not a
person has been placed at risk thereof, . . . a violation of an
order pursuant to [G. L. c. 208, § 18, 34B, or 34C; G. L.
c. 209, § 32; G. L. c. 209A, § 3, 4, or 5; or G. L. c.
209C, § 15 or 20], . . . arrested and charged with a violation
of [G. L. c. 269, § 10 (a), (c), or (m); G. L. c. 266, § 112; or
G. L. c. 272, §§ 77, 94], or arrested and charged with a
violation of [G. L. c. 269, § 10G]."
4
felony involving abuse as defined in [G. L. c. 209A, § 1]"
(abuse clause). G. L. c. 276, § 58A (1).
We are tasked with determining whether § 23A and § 102A,
neither of which is specifically enumerated in § 58A, fall
within one of the other specified categories of offenses
identified in the pretrial detention statute.
2. Barnes and § 23A. a. Background. We summarize the
facts alleged and procedural history provided in the record of
the proceedings against Barnes. After reportedly communicating
through social media, the victim and Barnes met at a
predetermined location and then proceeded to a hotel, where they
engaged in sexual intercourse. The victim later reported to
police that Barnes had sexually assaulted her. At the time of
the incident, the victim was fifteen years old and Barnes was
forty-three years old.
Barnes was charged with, among other things,3 statutory rape
in violation of § 23A, which provides in pertinent part:
"Whoever unlawfully has sexual intercourse or
unnatural sexual intercourse, and abuses a child under
[sixteen] years of age and . . . (b) there exists more than
a [ten-]year age difference between the defendant and the
victim where the victim is between the ages of [twelve] and
[sixteen] years of age . . . shall be punished . . . ."
3 Barnes was also charged with violating G. L. c. 265, § 26D
(enticement of child for prostitution); G. L. c. 265, § 13L
(reckless endangerment of child); and G. L. c. 272, § 53A
(sexual conduct for fee). These charges are not at issue in
this appeal.
5
At arraignment in the District Court, the Commonwealth moved to
detain Barnes pursuant to § 58A. Following a dangerousness
hearing, the Commonwealth's § 58A motion was allowed and Barnes
was ordered held. Barnes appealed to the Superior Court,
arguing that (1) § 23A does not qualify as a predicate offense
under the force clause of § 58A; and (2) the residual clause of
§ 58A is unconstitutionally vague. A Superior Court judge
agreed and reversed the District Court's judge's § 58A pretrial
detention order. The Commonwealth filed a petition for
extraordinary relief in the county court. G. L. c. 211, § 3. A
single justice of this court reserved and reported the case for
consideration by the full court.4
b. The force clause of § 58A. The force clause of § 58A
is straightforward: an offense qualifies as a predicate crime
pursuant to this clause if "an element of the offense is the
4 After the Commonwealth filed its G. L. c. 211, § 3,
petition, a grand jury indicted Barnes for violating § 23A,
based on the same facts. Barnes was arraigned in the Superior
Court, during which time the Commonwealth filed a new § 58A
motion but requested that no action be taken at arraignment due
to the instant appeal before this court; instead, bail was set
with conditions. The Commonwealth moved to dismiss the charge
in the District Court. That motion was allowed. Although the
Commonwealth's c. 211, § 3, petition pertained to Barnes's
District Court charge, which has since been dismissed, review by
this court to determine whether a charge of violating § 23A
qualifies as a predicate offense under § 58A remains
appropriate, as Barnes is still subject to potential § 58A
pretrial detainment in the Superior Court based on the same
charge.
6
use, attempted use or threatened use of physical force against
the person of another." G. L. c. 276, § 58A (1). In making
this determination, we take a categorical approach, that is,
look at the elements of the offense, rather than the facts of or
circumstances surrounding the alleged conduct. Commonwealth v.
Young, 453 Mass. 707, 711-712 (2009).
The elements of the crime of statutory rape in violation of
§ 23A are that the defendant (1) had sexual intercourse or
unnatural sexual intercourse with (2) a child between twelve and
sixteen years of age, and (3) there is more than a ten-year gap
between the ages of the defendant and the victim. See G. L.
c. 265, § 23A. Compare Commonwealth v. Bernardo B., 453 Mass.
158, 172 (2009) (discussing elements of G. L. c. 265, § 23,
"rape and abuse of child"). On its face, § 23A does not have as
an element "the use, attempted use or threatened use of force."
G. L. c. 276, § 58A (1). See Bernardo B., supra ("Force is not
a necessary element of the crime"). The Commonwealth contends
that a charge of statutory rape nevertheless qualifies as a
predicate offense under the force clause of § 58A because
statutory rape contains an inherent element of force and the act
of penetration on a child may substitute for the physical force
requirement of the force clause.
To support its position, the Commonwealth points to cases
in which the defendant is charged with forcible rape pursuant to
7
G. L. c. 265, § 22 (§ 22), and the (adult) complainant was
unable to give or refuse consent due to being intoxicated or
otherwise incapacitated. We have held that there, "the only
force required for proof of the crime is 'such force as was
necessary to accomplish' the act of intercourse -- that is, only
the force necessary to effect penetration." Commonwealth v.
Blache, 450 Mass. 583, 589 (2008), quoting Commonwealth v.
Burke, 105 Mass. 376, 380 (1870). The Commonwealth reasons that
because a child is legally incapable of consenting to sexual
intercourse, see Commonwealth v. Wilbur W., 479 Mass. 397, 398-
399 (2018), the act of penetration of a child satisfies the
element of physical force required by § 58A. This argument is
flawed.
Unlike § 23A, § 22 includes as an element the use or
threatened use of force.5 The fact that the element of force in
§ 22 may be satisfied in some cases by the act of penetration
has nothing at all to do with whether § 23A includes the use of
force as an element of the crime. The fact that a child is
incapable of consenting to sexual intercourse is relevant not to
whether there is an element of force in statutory rape, but
5 General Laws c. 265, § 22 (§ 22), states in pertinent
part: "Whoever has sexual intercourse or unnatural sexual
intercourse with a person, and compels such person to submit by
force and against his will, or compels such person to submit by
threat of bodily injury . . . shall be punished . . . ."
8
instead to whether consent is a defense to the crime (it is
not).
Importantly, the crime of forcible rape of a child, G. L.
c. 265, § 22A, which punishes "[w]hoever has sexual intercourse
or unnatural sexual intercourse with a child under [sixteen],
and compels such child to submit by force and against his will
or compels such child to submit by threat of bodily injury,"
does qualify as a predicate offense under the force clause of
§ 58A (emphasis added). The fact that the Legislature saw fit
to create two separate statutory rape offenses -- one that
includes the use of force and one that does not -- further
supports our conclusion that § 23A does not contain as an
element the use of force.
Because "the use, attempted use or threatened use of
physical force" is not an element of § 23A, the statute does not
qualify as a predicate offense under the force clause of § 58A.
c. The residual clause of § 58A. The Commonwealth also
maintains that § 23A is a predicate offense under the residual
clause of § 58A, and that the motion judge erred in concluding
that the clause is unconstitutionally vague. We agree with the
motion judge.
A statute is unconstitutionally vague when "it lacks
. . . certainty and definiteness . . . so that a [person] of
ordinary intelligence [is unable] to ascertain whether any act
9
or omission of his [or hers], as the case may be, will come
within the sweep of the statute." Commonwealth v. Slome, 321
Mass. 713, 715 (1947). See Commonwealth v. Reyes, 464 Mass.
245, 249 (2013). See also Sessions v. Dimaya, 138 S. Ct. 1204,
1212 (2018) (opinion of Kagan, J.) (Dimaya). However, "[t]he
degree of vagueness that is permissible under principles of due
process varies with the interests involved."6 Chief of Police of
Worcester v. Holden, 470 Mass. 845, 854 (2015) (citation
omitted). See Dimaya, supra at 1212 (opinion of Kagan, J.).
The United States Supreme Court declared a similar residual
clause, found in 18 U.S.C. § 924(e)(2)(B)(ii) (2012), known as
the Armed Career Criminal Act (ACCA), to be unconstitutionally
vague. Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).
The ACCA, which more severely punishes those defendants with
three or more previous violent felony convictions, defines
"violent felony" to include "any crime punishable by
imprisonment for a term exceeding one year . . . that . . .
involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The
Court held that the clause violated due process because it left
6 Thus, for example, "the regulation of business and
economic activity is subject to a vagueness test less strict
than that applied to most criminal behavior." Brookline v.
Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass.
372, 378 (1982), S.C., 398 Mass. 404 (1986).
10
open the question how to estimate the risk of physical injury
posed by a crime, as well as how much risk was required for a
crime to qualify as a violent felony. Johnson, supra at 2557-
2558. We soon followed suit with respect to the Massachusetts
version of the ACCA, G. L. c. 140, § 121, as incorporated in
G. L. c. 269, § 10G, which included an almost identical residual
clause.7 Commonwealth v. Beal, 474 Mass. 341, 350-351 (2016).
More recently, the Supreme Court reviewed the Federal
statute defining "crime of violence" (18 U.S.C. § 16) and struck
down its residual clause, which is almost identical to that of
§ 58A. See Dimaya, 138 S. Ct. at 1211. Compare 18 U.S.C.
§ 16(b) with G. L. c. 276, § 58A (1). The residual clause of 18
U.S.C. § 16 defines a crime of violence to include any felony
"that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in
the course of committing the offense."8 18 U.S.C. § 16(b).
7 The residual clause of G. L. c. 269, § 10G, provides that
a "violent crime" includes "any crime punishable by imprisonment
for a term exceeding one year . . . that . . . involves conduct
that presents a serious risk of physical injury to another."
G. L. c. 140, § 121, as incorporated in G. L. c. 269, § 10G.
8 The only difference between the residual clause of 18
U.S.C. § 16(b) and that of § 58A (1) is that, unlike the latter,
the former includes in its definition "physical force against
the person or property of another" (emphasis added).
11
In Dimaya, the defendant, who was found to be deportable
pursuant to the Immigration and Nationality Act after being
convicted of a crime of violence as defined by 18 U.S.C.
§ 16(b),9 challenged that clause as being unconstitutionally
vague. The Court concluded that because "deportation is 'a
particularly severe penalty,'" "the most exacting vagueness
standard should apply." Dimaya, supra at 1213 (opinion of
Kagan, J.). Following the reasoning in Johnson, the Court
concluded that, like the residual clause of the ACCA, § 16(b)
violates due process "[b]y combining indeterminacy about how to
measure the risk posed by a crime with indeterminacy about how
much risk it takes for the crime to qualify as a [crime of
violence]." Dimaya, supra at 1214, quoting Johnson, 135 S. Ct.
at 2558.
We note that the United States Supreme Court has not opined
on the constitutionality of the residual clause found in the
9 The Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii), requires the deportation of any alien
convicted of an "aggravated felony," which includes under the
statute a crime of violence as defined by 18 U.S.C. § 16.
12
Federal pretrial detention statute.10,11 However, we focus here
on art. 12 of the Massachusetts Declaration of Rights with
regard to § 58A. See, e.g., Commonwealth v. Augustine, 467
Mass. 230, 243-244 (2014). In doing so we note that although
pretrial detention is "regulatory in character," Brangan v.
Commonwealth, 477 Mass. 691, 702 n.16 (2017), "[t]he right to be
free from confinement prior to trial is a protected liberty
interest," (citations omitted).12 Commonwealth v. Torres, 441
Mass. 499, 502 n.4 (2004). We have held other statutes that
fail to give notice of conduct to be avoided and provide
unfettered discretion to police or the courts to be
unconstitutionally vague under due process principles where the
defendant's liberty interest is at stake. See Alegata v.
Commonwealth, 353 Mass. 287, 294-301 (1967) (striking down G. L.
10The federal pretrial detention statute, 18 U.S.C.
§ 3142(f)(1)(A), subjects defendants to a pretrial detention
hearing when his or her case involves "a crime of violence." A
"crime of violence" is defined in 18 U.S.C. § 3156(a)(4)(B) as
"any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense."
11At least one Federal District Court has addressed the
issue, however. The United States District Court for the
Western District of New York concluded that the Federal pretrial
detention statute is not unconstitutionally vague. See United
States vs. Watkins, U.S. Dist. Ct., No. 18-CR-131 (W.D.N.Y. Oct.
9, 2018).
12The length of a pretrial detention period may, in some
cases, last years. See e.g., Brangan, 477 Mass. at 693.
13
c. 272, § 66, in part, G. L. c. 272, § 63, in part, and G. L.
c. 272, § 68, in part, as facially void under due process
clause); Revere v. Aucella, 369 Mass. 138, 142-143 (1975),
appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429
U.S. 877 (1976) (holding G. L. c. 272, § 16, unconstitutionally
vague and overbroad for purpose of imposing criminal liability);
Commonwealth v. Kwiatkowski, 418 Mass. 543, 546-547 (1994)
(holding G. L. c. 265, § 43 [d], unconstitutionally vague under
due process principles); Commonwealth v. Pagan, 445 Mass. 161,
170-173 (2005) (striking down G. L. c. 275, § 18, in part, as
unconstitutionally vague).13
Given the Supreme Court’s holdings in Johnson and Dimaya,
coupled with our vagueness jurisprudence, we conclude that the
language in the residual clause of § 58A is unconstitutionally
vague under art. 12, and therefore § 23A cannot qualify as a
predicate offense pursuant to it.14
13To the extent that any of these cases refer to the
Fourteenth Amendment to the United States Constitution when
concluding that the statute at issue violates due process, the
statute also violates due process principles in art. 12 of the
Massachusetts Declaration of Rights.
14Analogizing to Beckles v. United States, 137 S. Ct. 886
(2017), the Commonwealth contends that § 58A should not be
subject to a rigorous vagueness analysis because the statute
only triggers the Commonwealth's right to move for a
dangerousness hearing and does not define a criminal offense or
"fix" a permissible sentence. See id. at 892. This argument is
misplaced.
14
3. Scione and § 102A. a. Background. We summarize the
alleged facts gleaned from the investigative reports, as well as
the procedural history provided in the record of the proceedings
against Scione, reserving certain details for later discussion.
Police responded to a 911 call reporting a fire in the driveway
of the victim's residence. Upon extinguishing the fire,
officers observed the melted remains of a plastic gasoline
container. A police detective described the origin of the fire
as a "homemade" improvised explosive device (I.E.D.), which, had
it exploded, could have caused "serious harm."
Scione was charged with violating § 102A, which provides in
pertinent part:
"Whoever, without lawful authority, . . . places an
explosive or a destructive or incendiary device or
substance with the intent: (i) to cause fear, panic or
In Beckles, the Supreme Court held that the Federal
sentencing guidelines could not be challenged for vagueness
because they are merely advisory and thus did not create any
arbitrary mechanisms of enforcement. See id. Section 58A (1)
automatically authorizes the Commonwealth to move for a
dangerousness hearing if the charged offense fits within any of
the categories of the provision, including the residual clause.
As a defendant who is subject to § 58A hearing faces the
possibility of pretrial detention, his or her liberty is plainly
at stake. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992)
("Freedom from bodily restraint has always been at the core of
the liberty protected by the Due Process Clause from arbitrary
governmental action"); Josh J. v. Commonwealth, 478 Mass. 716,
720-721 (2018); Paquette v. Commonwealth, 440 Mass. 121, 124,
131 (2003), cert. denied, 540 U.S. 1150 (2004). See generally
United States v. Salerno, 481 U.S. 739 (1987) (facial challenge
to Bail Reform Act, which subjects defendants to pretrial
detention, must pass scrutiny under due process clause).
15
apprehension in any person; or (ii) to ignite, explode or
discharge such explosive or such destructive or incendiary
device or substance . . . shall be punished . . . ."
At Scione's arraignment in the District Court, the
Commonwealth moved to detain him pursuant to § 58A. Following
the dangerousness hearing, the judge allowed the Commonwealth's
motion. Scione appealed from the ruling to the Superior Court,
challenging (for the first time) the Commonwealth's ability to
seek detention under § 58A with an alleged violation of § 102A
as the predicate offense. A Superior Court judge denied
Scione's appeal, concluding that the charge against him was a
lawful predicate under the abuse clause. Subsequently, Scione
filed a petition for extraordinary relief in the county court.
See G. L. c. 211, § 3. A single justice of this court denied
the petition without a hearing, and Scione appealed. The case
is now properly before us pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001).15
15Similar to Barnes's case, after Scione filed his c. 211,
§ 3, petition, a grand jury indicted him for violating § 102A
based on the same facts, and the Commonwealth moved to dismiss
the case in the District Court. The Commonwealth filed a new
§ 58A motion in the Superior Court, where a judge found that
abuse was alleged in connection with the charge, and ordered
Scione held. Thus, as with Barnes's case, although the c. 211,
§ 3, petition pertained to the now-dismissed District Court
charge, review by this court to determine whether the charge of
violating § 102A qualifies as a predicate offense under § 58A
remains appropriate.
16
b. The abuse clause of § 58A. Scione argues that the
lower court judge erred in concluding that a charge under § 102A
qualifies as a predicate offense under the abuse clause, that
is, that § 102A is not a "misdemeanor or felony involving
abuse." G. L. c. 276, § 58A (1). In particular, he contends
that the language and structure of the abuse clause requires a
categorical approach, i.e., an inquiry focused only on the
statutory elements of the charged offense, rather than the facts
underlying the complaint or indictment. See Commonwealth v.
Young, 453 Mass. 707, 712 (2009). Scione maintains that because
§ 102A does not have abuse as an element of the offense, it
cannot be a predicate offense that triggers § 58A. In contrast,
the Commonwealth argues that the plain language of the abuse
clause of § 58A captures all offenses "involving abuse" as
defined in G. L. c. 209A, § 1 (c. 209A, § 1), regardless of
whether the abuse involved is a statutorily prescribed element
of the offense charged. For the reasons that follow, we agree
with the Commonwealth.
Whether the abuse clause of § 58A requires a categorical
approach depends on what the Legislature meant by the phrase "a
misdemeanor or felony involving abuse." See Pyle v. School
Comm. of S. Hadley, 423 Mass. 283, 285 (1996) ("Our primary duty
is to interpret a statute in accordance with the intent of the
Legislature").
17
As discussed in more detail supra, § 58A specifically
states that "abuse" is defined there just as the term is defined
in c. 209A, § 1. This does not provide any insight whether a
categorical approach to the abuse clause is necessary. The word
"involving" is not defined in the statute. "When a statute does
not define its words we give them their usual and accepted
meanings, as long as these meanings are consistent with the
statutory purpose. . . . We derive the words' usual and
accepted meaning from sources presumably known to the statute's
enactors, such as their use in other legal contexts and
dictionary definitions." Commonwealth v. Campbell, 415 Mass.
697, 700 (1993), quoting Commonwealth v. Zone Book, Inc., 372
Mass. 366, 369 (1977). Webster's Third New International
Dictionary 1191 (1993) defines the term "involve" as "to relate
closely[,] . . . contain, include[,] . . . to require as a
necessary accompaniment[,] . . . to have an effect on[,] concern
directly." The term appears to connote both nonexhaustive
inclusion with the use of the word "include," and selective
exclusivity with the use of the phrase "to require as a
necessary accompaniment," depending upon the classification at
issue.
Thus, it is unclear whether "involving" in the abuse clause
means "limited to," or "including but not limited to." The
former meaning would indicate a categorical approach, looking
18
only at the elements of the crime to determine whether a
particular offense is one "involving abuse"; the latter meaning
would instead require a review of the circumstances surrounding
the alleged crime. As we cannot discern the meaning of the
clause based on its plain language, we turn to other "well-
established principles of statutory construction [to] guide our
interpretation." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass.
329, 334 (2016).
We begin by comparing the abuse clause to the force clause,
also in § 58A (1). See Ginther v. Commissioner of Ins., 427
Mass. 319, 324 (1998) (comparing use of language employed within
same statute is well-established rule of statutory
construction). The force clause permits the Commonwealth to
move for the pretrial detention of a defendant charged with "a
felony offense that has as an element of the offense the use,
attempted use or threatened use of physical force against the
person of another" (emphasis added). G. L. c. 276, § 58A (1).
Notably, there the Legislature specifically refers to those
crimes which have "as an element of the offense" the use of
force, but did not do so in the abuse clause. See Commonwealth
v. Gagnon, 439 Mass. 826, 833 (2003) ("[w]here the [L]egislature
has carefully employed a term in one place and excluded it in
another, it should not be implied where excluded" [citation
19
omitted]). See also Commonwealth v. Caracciola, 409 Mass. 648,
653 n.8 (1991).
Additionally, we note that there is a fundamental
difference between the concepts of "the use of force" and
"abuse." The use of force can be, and is, an element of
particular crimes. See, e.g., G. L. c. 265, § 22A (rape of
child); G. L. c. 265, § 22 (rape); G. L. c. 265, § 18C (home
invasion); G. L. c. 265, § 19 (unarmed robbery); G. L. c. 265,
§ 51 (human trafficking -- "forced services").
In contrast, as used in § 58A, abuse is not an element of a
crime. "Abuse" is defined in c. 209A, § 1, as
"the occurrence of one or more of the following acts
between family or household members: (a) attempting to
cause or causing physical harm; (b) placing another in fear
of imminent serious physical harm; (c) causing another to
engage involuntarily in sexual relations by force, threat
or duress."
Thus, "abuse" as it is used in § 58A is best described as a
characterization of an action or actions, and is itself
comprised of elements. We are unaware of any crimes that have
as an element "abuse" as defined in c. 209A, § 1.
As the Commonwealth points out, only assault or assault and
battery on a household member, in violation of G. L. c. 265,
§ 13M, likely would satisfy the abuse clause under a categorical
approach. The drafters clearly knew how to list specific crimes
to be considered as predicate offenses under § 58A, because they
20
did so. See G. L. c. 276, § 58A (1). Had the Legislature
intended that only one crime be captured under the abuse clause,
there would be no need for the clause at all; instead, the
drafters would have included § 13M as one of the specifically
enumerated offenses in the section.16 See DiFiore v. American
Airlines, Inc., 454 Mass. 486, 490-491 (2009) ("our respect for
the Legislature's considered judgment dictates that we interpret
the statute to be sensible, rejecting unreasonable
interpretations unless the clear meaning of the language
requires such an interpretation").
Finally, applying a noncategorical approach to the abuse
clause is well supported by the legislative history of § 58A.
See Casseus v. Eastern Bus Co., 478 Mass. 786, 797 (2018),
quoting Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013)
("A statute's meaning 'must be reasonable and supported by the
16Scione's reliance upon Commonwealth v. Young, 453 Mass.
707 (2009), to support the argument that the abuse clause
requires a categorical approach to determine whether a felony is
a predicate offense under § 58A is unavailing. In that case,
where we held that unlawful possession of a firearm is not a
predicate offense under § 58A, we concluded that "§ 58A requires
a categorical approach to determining whether a felony is a
predicate offense, independent of the particular facts giving
rise to a complaint or indictment." Id. at 712, 716. However,
this conclusion referred to the force and residual clauses of
§ 58A, not its abuse clause. Id. at 711-712. Parenthetically,
we note that the Legislature has since amended § 58A to include
unlawful possession of a firearm as an enumerated offense. See
G. L. c. 276, § 58A (1).
21
. . . history of the statute'"). In 1994, after the previous
version of the pretrial detention statute had been held
unconstitutional,17 the newly proposed bill was presented to the
Legislature accompanied by a letter from then Governor William
F. Weld explaining its purpose. The Governor wrote in part:
"Government has no more important obligation than
protecting the safety of its citizens, and yet dangerous
arrestees who clearly pose an ongoing danger to our
community too often are released out on bail or personal
recognizance. Innocent lives, particularly the lives of
women victimized by domestic violence continue to be at
risk. This legislation is critical to our ability to
reduce, if not eliminate, that risk."
1994 House Doc. No. 4305. In addition, when the Senate was
considering the proposed legislation, at least one senator
raised the issue of combatting domestic violence.18 Thus,
interpreting the abuse clause so as to allow for the examination
of the underlying facts giving rise to the charge in question,
rather than in a strictly categorical way, is in keeping with
the Legislature's intent.
17We concluded that certain provisions of G. L. c. 276,
§ 58, as amended through St. 1992, c. 201, §§ 3-4, the
predecessor to § 58A, had insufficient procedural protections.
See Aime v. Commonwealth, 414 Mass. 667, 682 (1993).
18In highlighting the importance of the bill, then Senator
Cheryl Jacques stated during a Senate session on June 30, 1994:
"One of the biggest fights on [the Senate's] hands is curbing
domestic abuse." State House News Service (Senate Sess.), June
30, 1994, at 1 (considering bail reform and "release on bail of
certain persons" in 1994 House Doc. No. 4305).
22
For the foregoing reasons, we conclude that a judge may
look beyond the elements of a crime to the surrounding
circumstances of the alleged offense to determine whether it is
"misdemeanor or felony involving abuse," and thus a predicate
offense under § 58A.19
c. Application of the abuse clause to the circumstances of
the alleged violation of § 102A. Scione argues that, even
taking a noncategorical approach, the circumstances surrounding
his alleged violation of § 102A do not qualify under the abuse
clause of § 58A, that is, the alleged facts did not involve
abuse as defined by c. 209A, § 1. More specifically, he argues
that the record does not support a finding that he is a "family
or household member[]," that he "attempt[ed] to cause . . .
physical harm" to the victim or that he "plac[ed anyone] in fear
of imminent serious physical harm." See G. L. c. 209A, § 1.
Reviewing the single justice's order pursuant to G. L. c. 211,
§ 3, for an abuse of discretion or clear error of law, see
Department of Mental Retardation v. Kendrew, 418 Mass. 50, 53
(1994), we find neither.
19Scione also argues that § 102A does not qualify as a
predicate for pretrial detention under the residual clause of
§ 58A and that the clause is unconstitutionally vague. Based on
our conclusion that § 102A is a predicate offense in these
circumstances pursuant to the abuse clause of § 58A (and because
we conclude in part 2.c, supra, that the residual clause is
unconstitutional), we need not reach these arguments.
23
Pursuant to c. 209A, § 1, a "family or household member[]"
is defined in pertinent part as
"persons who . . . are or have been in a substantive dating
or engagement relationship, which shall be adjudged by
. . . consideration of the following factors: (1) the
length of time of the relationship; (2) the type of
relationship; (3) the frequency of interaction between the
parties; and (4) if the relationship has been terminated by
either person, the length of time elapsed since the
termination of the relationship" (emphasis added).
Here, according to the record, Scione and the victim had dated
for approximately four years before the victim ended the
relationship in 2012, six years prior to the instant incident.
Although the victim had not had physical or verbal contact with
Scione for a few years after the relationship ended, over the
past six years, members of the victim's family had seen Scione
on numerous occasions walking past their home. Approximately
three years ago, he was seen looking into the windows of the
home, and during the week preceding the incident, he was
observed throwing candy at the house, specifically at the window
that used to be that of the victim's bedroom when she and Scione
were dating. These facts certainly satisfy the definition of a
family or household member as defined by c. 209A, § 1. See,
e.g., Brossard v. West Roxbury Div. of the Dist. Court Dep't,
417 Mass. 183, 185 (1994) ("emotional relationship which
entailed substantially more than a few casual dates" amounted to
"substantive dating relationship").
24
The record also supports a finding that Scione attempted to
cause physical harm or placed the victim in fear of imminent
serious physical harm as he placed a homemade I.E.D. at the
bottom of the victim's driveway, which, had it exploded, could
have caused serious harm. Thus, based on the circumstances in
this case, the alleged violation of § 102A qualifies as a
predicate offense under the abuse clause of § 58A. We therefore
affirm the order of the single justice denying Scione's petition
for extraordinary relief.
4. Conclusion. The Superior Court judge's order vacating
the District Court judge's § 58A pretrial detention order of
Barnes is affirmed. The denial of Scione's petition for
extraordinary relief is affirmed.
So ordered.
LOWY, J. (concurring). I agree with the court that, in the
circumstances of this case, use of an incendiary device in
violation of G. L. c. 266, § 102A, qualifies as a predicate
offense under the pretrial detention statute, G. L. c. 276,
§ 58A (§ 58A). I also agree that rape aggravated by age
difference, G. L. c. 265, § 23A (§ 23A), does not qualify as a
predicate offense under § 58A. I write separately because such
a counterintuitive result requires further discussion and
consideration by the Legislature.
As discussed in the court's opinion, the pretrial detention
statute does not list rape aggravated by age difference as a
qualifying offense. Given today's result, the Legislature may
choose to consider this omission with alacrity.20 There is an
apparent explanation for why aggravated rape is not enumerated
as a qualifying offense -- it presumably falls within the
residual clause of § 58A. Our decision today makes clear,
however, that the residual clause is unconstitutionally vague.
Finally, the force clause of § 58A applies only when an element
of the offense is "the use, attempted use or threatened use of
physical force against the person of another." G. L. c. 276,
§ 58A (1). Aggravated rape, as it applies to this indictment,
means that there was intercourse between individuals more than
20Indeed, there is pending legislation to this effect. See
2018 House Doc. No. 4903.
2
ten years apart in age. Indeed, the point of criminalizing this
serious and disturbing conduct is that such conduct is deeply
offensive, regardless of whether force is used. The
Commonwealth's argument that § 23A falls within the force clause
is to ignore the egregiousness of a violation of § 23A even when
no force is involved.
Although our conclusion with respect to aggravated rape is
unfortunate, it is correct under the law as currently written.
Therefore, I concur in the judgments.