Commonwealth v. Vieira

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revision and are superseded by the advance sheets and bound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–12696

COMMONWEALTH vs. CARLOS L. VIEIRA.

Suffolk. May 6, 2019. - October 22, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.

Pretrial Detention. Indecent Assault and Battery. Statute,
Construction.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 28, 2019.

The case was reported by Cypher, J.

Catherine Langevin Semel, Assistant District Attorney
(Kimberly Faitella, Assistant District Attorney, also present)
for the Commonwealth.
Gilbert F. Nason, Jr., for the defendant.

LENK, J. General Laws c. 276, § 58A, permits the pretrial

detention of a defendant, without bail, where the individual

poses an ongoing danger such that "no conditions of release will

reasonably assure the safety of any other person or the

community." To be detained pursuant to a finding of
 2

dangerousness prior to trial, a defendant first must be charged

with one of an enumerated set of predicate offenses. Among

these is any "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." G. L. c. 276, § 58A (1).

The defendant is alleged to have engaged in sexual activity

with a thirteen year old boy whom he met online, in violation of

G. L. c. 265, § 23A (statutory rape), and G. L. c. 265, § 13B

(indecent assault and battery on a child). In Commonwealth v.

Barnes, 481 Mass. 225, 229-230 (2019), we recently determined

that the rape of a child, not by force but aggravated by age,

does not constitute a predicate offense under G. L. c. 276,

§ 58A, because the offense is not one of the enumerated offenses

identified in the statute and does not have as an element the

use, attempted use, or threatened use of physical force. Put

differently, under the dangerousness statute, G. L. c. 276,

§ 58A, a person charged with statutory rape cannot be held

without conditions of release prior to trial.

The Commonwealth argues that a charge for the distinct

crime of indecent assault and battery on a child under the age

of fourteen, at issue here, renders an individual eligible for

such pretrial detention, even where its more severe analog does

not. Compare G. L. c. 265, § 13B (maximum penalty ten years in

State prison), with G. L. c. 265, § 23A (minimum penalty ten
 3

years in State prison). We disagree, and conclude that a charge

of indecent assault and battery on a child under the age of

fourteen may not form the basis for pretrial detention under

G. L. c. 276, § 58A.

1. Background. The following is taken from the agreed-

upon statement of facts by both parties.

The defendant was charged with two counts of aggravated

rape of a child, G. L. c. 265, § 23A,1 and two counts of indecent

assault and battery on a child under fourteen, G. L. c. 265,

§ 13B. He was arraigned in February 2019.2 At arraignment, the

Commonwealth sought a dangerousness hearing. See G. L. c. 276,

§ 58A.

1 The complaint appears to charge that "there existed more
than a [five] year age difference between the defendant and the
victim, and the victim was under [twelve] years of age." By the
Commonwealth's contention, the victim was thirteen years old,
two years older than the maximum age applicable under G. L.
c. 265, § 23A (a). The clerical error does not change our
analysis, however, as a violation of G. L. c. 265, § 23A, occurs
also, under G. L. c. 265, § 23A (b), where "there exists more
than a [ten] year age difference between the defendant and the
victim" and the victim "is between the age of [twelve] and
[sixteen]."

2 The Commonwealth maintains that, during the summer
of 2018, when he was forty nine years old, the defendant met a
thirteen year old boy on an online dating platform. The two
arranged to meet in a park and then engaged in sexual activity
in the back of the defendant's van. Later, the juvenile
recognized the defendant in public and told his mother he had
seen the defendant's van. In January 2019, they reported their
suspicions to police.
 4

A judge of the District Court initially found probable

cause to detain the defendant pending a dangerousness hearing,

and allowed the Commonwealth's request for a three-day

continuance. The next day, however, the judge sua sponte

required the parties to appear at a second hearing to determine

whether any of the charges the defendant faced qualified as a

predicate offense under G. L. c. 276, § 58A, in light of our

decision in Barnes, 481 Mass. at 230. The judge concluded that

none of the charges qualified under the statute and that the

defendant could not be detained without bail.3

The following day, the Commonwealth filed an emergency

petition for extraordinary relief in the county court, pursuant

to G. L. c. 211, § 3. The single justice reserved and reported

3 Initially, the judge allowed the Commonwealth's request
for a ten-day stay in order to file a petition in the county
court. Later that day, recognizing the defendant's right to a
bail hearing, the judge revised her order and allowed a one-day
stay during which the Commonwealth could seek relief in the
county court.

Where a judge allows the Commonwealth's request for a
dangerousness hearing, a continuance may be permitted, on a
showing of good cause, for no more than three days. See
Mendonza v. Commonwealth, 423 Mass. 771, 791-792 (1996). See
also Commonwealth v. Lester L., 445 Mass. 250, 258 (2005); G. L.
c. 276, § 58A (4). Here, the Commonwealth's request for such a
hearing was denied. As the issue is not properly before us, we
leave for another day consideration of the length of time, if
any, a defendant may be held pending appeal from the denial of
the Commonwealth's request for a dangerousness hearing.
 5

the matter to the full court, and at the same time ordered that

a bail hearing be conducted in the District Court.

During the pendency of these proceedings, the defendant was

indicted by a grand jury for the same offenses. In April of

2019, the defendant was arraigned in the Superior Court and

placed on pretrial probation.4

2. Discussion. The defendant maintains, and the District

Court judge determined, that the defendant could not be detained

without bail pending trial, given the crimes with which he had

been charged. See G. L. c. 276, § 58A.

Pretrial release is governed by two statutes: G. L.

c. 276, § 58 (bail statute), and G. L. c. 276, § 58A

(dangerousness statute). Under the bail statute, "[t]he

preferred pretrial disposition is release on personal

4 Although the issues raised are no longer live, "it is
entirely appropriate that we proceed to adjudicate [these]
claims." Mendonza, 423 Mass. at 777 (discussing constitutional
challenges to G. L. c. 276, § 58A).

"The issues are certainly of recurring importance to the
administration of justice in the Commonwealth, yet owing to
the limited time during which detention is authorized and
the very short time during which a continuance on the
motion of the Commonwealth may be granted, they would
almost certainly evade review in this court. In such cases
we have often proceeded to consider the important recurring
question."

Id., citing Aime v. Commonwealth, 414 Mass. 667, 670 (1993)
("This doctrine is designed to assist in the clarification of
the law generally, and not simply to assist the situation of a
particular party").
 6

recognizance." Mendonza v. Commonwealth, 423 Mass. 771, 774

(1996), citing G. L. c. 276, § 58. Where release on personal

recognizance "will not reasonably assure the appearance of the

person before the court," conditions of release, including bail,

are appropriate. See G. L. c. 267, § 58. The purpose of bail

is to assure the appearance of the accused in court. See

Commonwealth v. Brangan, 477 Mass. 691, 692, 699 (2017);

Commonwealth v. King, 429 Mass. 169, 174 (1999).

Pretrial detention is a measure of last resort. See

Brangan, 477 Mass. at 704 ("in our society liberty is the norm,

and detention prior to trial or without trial is the carefully

limited exception" [citation omitted]). Prior to conviction, a

criminal defendant is presumed not to have committed the crimes

charged. See Commonwealth v. Madden, 458 Mass. 607, 610 (2010).

Bail set in an amount that the individual cannot afford,

resulting in "the functional equivalent of an order for pretrial

detention," Brangan, 477 Mass. at 705, is permissible only where

no other conditions or amount of bail would "adequately assure

the person's appearance before the court." G. L. c. 276, § 58.5

5 Where the amount of bail is likely to result in prolonged
pretrial detention,

"an authorized person setting bail must provide written or
orally recorded findings of fact and a statement of reasons
as to why, under the relevant circumstances, neither
alternative nonfinancial conditions nor a bail amount that
the person can afford will reasonably assure his or her
 7

In the absence of a motion by the Commonwealth pursuant to G. L.

c. 276, § 58A, any potential danger posed by the defendant to

the community does not factor into the calculus. King, 429

Mass. at 174.6

Under the dangerousness statute, however, pretrial

detention may be permitted, in limited circumstances, where "no

conditions of release will reasonably assure the safety of any

other person or the community." G. L. c. 276, § 58A. See

Mendonza, 423 Mass. at 774. Such a determination is made after

a dangerousness hearing, held at the Commonwealth's request.7

appearance before the court, and further, must explain how
the bail amount was calculated after taking the person's
financial resources into account and why the commonwealth's
interest in bail or a financial obligation outweighs the
potential adverse impact on the person, their immediate
family or dependents resulting from pretrial detention."

G. L. c. 276, § 58.

6 "Section 58 does not provide for the consideration of
public safety in determining whether to release a person to
bail. Rather, the only permissible consideration is whether the
defendant is reasonably likely to reappear before the court."
(Footnote omitted.) Commonwealth v. King, 429 Mass. 169, 174
(1999).

7 At such a hearing, the Commonwealth bears the "heavy
burden" of proving the defendant's dangerousness by clear and
convincing evidence. Commonwealth v. Diggs, 475 Mass. 79, 80
n.2 (2016), citing Mendonza, 423 Mass. at 780. "The [defendant]
has a right to counsel at the hearing, including, if
appropriate, appointed counsel. [The defendant] shall have the
right to testify, [to] present witnesses and information, and to
cross-examine witnesses who appear against him [or her]."
Mendonza, supra at 774-775.
 8

a. Predicate offenses under G. L. c. 276, § 58A. Where

the Commonwealth seeks pretrial detention on account of an

individual's dangerousness, "[t]he threshold question in every

case is whether the defendant has [been charged with committing]

a predicate offense under [G. L. c. 276,] § 58A (1)." See

Commonwealth v. Young, 453 Mass. 707, 711 (2009). If no

predicate offense has been charged, a defendant may not be

placed in pretrial detention under G. L. c. 276, § 58A.

The charges for which an individual may be detained prior

to trial, due to dangerousness, are limited. See Commonwealth

v. G.F., 479 Mass. 180, 198 (2018); Madden, 458 Mass. at 610.

The practice of pretrial detention on the basis of dangerousness

has been upheld as constitutional in part because the

Legislature "carefully limit[ed] the circumstances under which

detention may be sought to the most serious of crimes," e.g., a

"specific category of extremely serious offenses." United

States v. Salerno, 481 U.S. 739, 747, 750 (1987).8 See Brangan,

477 Mass. at 706, quoting Aime v. Commonwealth, 414 Mass. 667,

8 In the Federal context, pretrial detention was intended to
be limited to a "small but identifiable group of particularly
dangerous defendants." See United States v. Silva, 133 F. Supp.
2d 104, 110 (D. Mass. 2001), quoting See S. Rep. No. 225, 98th
Cong., 2d Sess., at 4-12 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3189. "Congress specifically found that these individuals
are far more likely to be responsible for dangerous acts in the
community after arrest [than individuals accused of other
crimes]." United States v. Salerno, 481 U.S. 739, 750 (1987).
 9

680 (1993) ("State may not enact detention schemes without

providing safeguards similar to those which Congress

incorporated into the [Federal] Bail Reform Act"). See also

Mendonza, 423 Mass. at 786-787 (inclusion of certain enumerated

crimes under G. L. c. 276, § 58A, but not under Federal Bail

Reform Act, raises no constitutional concerns where enumerated

crimes exhibited sufficient "menace of dangerousness").

Indecent assault and battery on a child, as codified in

G. L. c. 265, § 13B, is not among the crimes explicitly

enumerated as a predicate offense permitting pretrial detention

under G. L. c. 276, § 58A.9 The Commonwealth argues that the

offense nonetheless falls under the "force clause" in the

statute, which appends to the list of enumerated offenses any

"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." See G. L. c. 276, § 58A (1).10

9 "The enumerated offenses in [G. L. c. 276, § 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].'" Commonwealth v. Barnes,
481 Mass. 225, 227 n.2 (2019).

10In addition to the enumerated offenses and the force
clause, the statute also incorporates offenses by means of an
abuse clause and a residual clause. See Barnes, 481 Mass.
 10

In determining whether a crime qualifies under the force

clause of G. L. c. 276, § 58A, we take a "categorical approach."

See Barnes, 481 Mass. at 228. Our analysis turns on "the

elements of the offense, rather than the facts of or

circumstances surrounding the alleged conduct." Id., citing

Young, 453 Mass. at 711-712.11 That is to say, we look at the

definition of the crime, rather than the facts of any one

particular case. See Commonwealth v. Wentworth, 482 Mass.

664, 671 & n.4 (2019) (noting that strict elements-based

approach is appropriate where defendant has no right to trial by

jury during dangerousness proceeding). Where "physical force"

is an element of the offense charged, the offense qualifies

under the statute. See Barnes, supra at 235-236 (setting forth,

as examples: "G. L. c. 265, § 22A [rape of child]; G. L.

c. 265, § 22 [rape]; G. L. c. 265, § 18C [home invasion]; G. L.

at 227. The Commonwealth does not argue that the abuse clause
applies here. The residual clause is no longer applicable, as
we have determined that it is unconstitutionally vague. Id.
at 232.

11As the United States Supreme Court noted in the Federal
context, "The alternative, case-by-case, approach would collapse
the distinction between the holding that triggers a detention
hearing and the factors relevant at the hearing . . . ." See
United States v. Singleton, 182 F.3d 7, 12 (1999). "Thus,
because adopting a case-by-case approach would blur two distinct
statutory inquiries and would give more weight to fact-intensive
analysis at an earlier stage of the case than [the Legislature]
appears to have intended, . . . offenses eligible for pretrial
detention hearings are ascertainable categorically by reference
to their elements . . . ." Id.
 11

c. 265, § 19 [unarmed robbery]; G. L. c. 265, 51 [human

trafficking -- 'forced services']").

Accordingly, we must determine whether indecent assault and

battery on a child under fourteen, under G. L. c. 265, § 13B,

includes "the use, attempted use or threatened use of physical

force" as an element of the offense. G. L. c. 276, § 58A (1).

b. Elements. General Laws c. 265, § 13B, does not

precisely define the elements of the crime ("Whoever commits an

indecent assault and battery on a child under the age of

[fourteen] shall be punished . . ."). "[W]e presume that the

Legislature intended to incorporate the common law definition of

assault and battery." Commonwealth v. Burke, 390 Mass. 480,

481-482 (1983) (interpreting G. L. c. 265, § 13B).12 Because an

assault is "an offer or attempt to do a battery," we need look

12To prove a violation of G. L. c. 265, § 13B, the
Commonwealth must show that a battery occurred, that the
touching was indecent, and that it was committed on a child
under the age of fourteen. See Commonwealth v. Suero, 465 Mass.
215, 220 (2013). See also Doe, Sex Offender Registry Bd. No.
151564 v. Sex Offender Registry Bd., 456 Mass. 612, 616 (2010);
Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562 (2018);
Instruction 6.520 of the Criminal Model Jury Instructions for
Use in the District Court (2018). For a battery to be
"indecent," it must be "fundamentally offensive to contemporary
standards of decency and moral values." See Commonwealth v.
Trowbridge, 419 Mass. 750, 758 (1995). See also Doe, Sex
Offender Registry Bd. No. 151564, supra; Commonwealth v. Rosa,
62 Mass. App. Ct. 622, 625 (2004). The elements of indecency
and age do not require force; the Commonwealth contends that the
element of battery, however, does.
 12

only to the crime of battery to determine whether the offense

includes an element of force. See id. at 482.

We have recognized three types of criminal battery at

common law: harmful battery, reckless battery, and offensive

battery. See Commonwealth v. Eberhart, 461 Mass. 809, 819

(2012). See also Commonwealth v. Beal, 474 Mass. 341, 352

(2016); G. L. c. 265, § 13A. Harmful battery is "[a]ny touching

'with such violence that bodily harm is likely to result.'"

Burke, 390 Mass. at 482, quoting Commonwealth v. Farrell, 322

Mass. 606, 620 (1948). Reckless battery is a "wilful, wanton

and reckless act which results in personal injury to another"

(citation omitted). Eberhart, supra at 818. See Commonwealth

v. Porro, 458 Mass. 526, 529 (2010). The defendant does not

dispute that these types of battery require the use of physical

force.

Offensive battery, by contrast, requires only that "the

defendant, without justification or excuse, intentionally

touched the victim, and that the touching, however slight,

occurred without the victim's consent." See Eberhart, 461 Mass.

at 818, quoting Commonwealth v. Harnett, 72 Mass. App. Ct. 467,

476 (2008). An offensive touching "is so only because of lack

of consent," and comes into play "when the alleged battery is

not of the physically harmful type." Burke, 390 Mass. at 483.

"The affront to the victim's personal integrity is what makes
 13

the touching offensive." Id. Such "de minimis touchings" may

include tickling, see, e.g., Hartnett, supra; spitting, see,

e.g., Commonwealth v. Cohen, 55 Mass. App. Ct. 358, 359–360

(2002); or moving someone from one room to another, see, e.g.,

Parreira v. Commonwealth, 462 Mass. 667, 672 (2012).

Commonwealth v. Colon, 81 Mass. App. Ct. 8, 20 (2011). It is

this third type of battery that the defendant argues does not

include an element of "physical force."

We previously have determined that a crime that requires

physical contact or touching need not necessarily require the

use of "physical force." See, e.g., Barnes, 481 Mass. at 230

(force not element of statutory rape). See also Commonwealth v.

De La Cruz, 15 Mass. App. Ct. 52, 59 (1982) (force and violence

not elements of battery).13

13"Force" is not the equivalent of "touch." As the United
States Court of Appeals for the Seventh Circuit put it,

"Every battery entails a touch, and it is impossible to
touch someone without applying some force, if only a
smidgeon. Does it follow that every battery comes within
[18 U.S.C. § 16(a)]? No, it does not. Every battery
involves 'force' in the sense of physics or engineering,
where 'force' means the acceleration of mass. . . . [W]e
must treat the word "force" as having a meaning in the
legal community that differs from its meaning in the
physics community. . . . Otherwise 'physical force
against' and 'physical contact with' would end up meaning
the same thing . . . ."

Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)
(interpreting "physical force" under Federal definition of
"crime of violence").
 14

In Barnes, 481 Mass. at 227, the defendant and a child were

alleged to have communicated via social media, gone to a hotel,

and engaged in sexual intercourse. The defendant was charged

with the rape of a child, G. L. c. 265, § 23A, not by force but,

rather, aggravated by a difference in age (so-called statutory

rape). Although sexual intercourse necessarily requires

physical contact, we concluded that it does not require

"physical force" within the meaning of G. L. c. 276, § 58A. See

Barnes, supra at 229. Indeed, when prosecuting such a crime,

the Commonwealth need not prove that physical force, or the

threat thereof, was used (for instance, to overpower the will of

the child); it is sufficient that the child did not, and indeed

could not, consent to the sexual activity. See id.

With respect to G. L. c. 265, § 13B, "a child under the age

of [fourteen] years shall be deemed incapable of consenting" to

conduct prosecuted under that section. By eliminating consent

as a defense, the Legislature placed G. L. c. 265, § 13B, "in

the same category as statutory rape." See Commonwealth v.

Knapp, 412 Mass. 712, 714-715 (1992). That a child cannot

consent makes the act unlawful; it does not, however, transform

the act into an application of physical force. Cf. Barnes, 481

Mass. at 229 ("The fact that a child is incapable of consenting

to sexual intercourse is relevant not to whether there is an
 15

element of force in statutory rape but, instead, to whether

consent is a defense to the crime [it is not]").

Physical force is not required in order to transform sexual

intercourse into rape; lack of consent suffices. So too with

indecent assault and battery; that the underlying touching was

offensive is sufficient. Indeed, that physical force is not

required enables the prosecution of indecent assault and battery

in a greater number of cases. The reverse side of that coin,

however, is that a charge of indecent assault and battery does

not necessitate a crime of physical force.14

The Commonwealth urges us to jettison the interpretation of

force we relied on in Barnes, 481 Mass. at 229, and instead to

embrace the "common-law" meaning, whereby force may consist of

any touching, however minimal. In United States v. Castleman,

572 U.S. 157, 163-164 (2014), for example, the United States

Supreme Court reasoned that, in defining a "misdemeanor crime of

14At a bail determination hearing, we do not look beyond
the elements of assault and battery to discern, on a case-by-
case basis, whether a harmful, reckless, or offensive battery
underlay the charges. See Commonwealth v. Young, 453 Mass. 707,
711-712 (2009). Cf. Commonwealth v. Colon, 81 Mass. App. Ct. 8,
17 (2011) ("Harmful battery, reckless battery, and offensive
battery have different material elements, so a certified record
of conviction that refers only to 'assault and battery' could
refer to any one of these three sets of material elements").
But see Commonwealth v. Wentworth, 482 Mass. 664, 672 (2019)
(modified categorical approach appropriate in context of
sentence enhancement where "jury must conclude beyond a
reasonable doubt that the conviction involved violence").
 16

domestic violence," Congress "meant to incorporate that

misdemeanor-specific meaning of 'force,'" which is "satisfied by

even the slightest offensive touching." The same cannot be

said, however, of G. L. c. 276, § 58A, wherein the Legislature

explicitly limited the application of the clause to "felony"

offenses. As the Court reasoned in Johnson v. United States,

559 U.S. 133, 141 (2010), the meaning of "physical force" should

not be "derived from a common-law misdemeanor" where it is used

to define a class of felonies.15

c. Related statutes. Our interpretation is consistent

with the interpretation of similar "force clauses" in related

Federal and Massachusetts statutes that predate the enactment of

G. L. c. 276, § 58A. "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" (citation

omitted). Barnes, 481 Mass. at 234-235. See Young, 453 Mass.

at 712 (citing Federal authority in interpreting Federal Bail

Reform Act, which postdates enactment of G. L. c. 276, § 58A).

15"At common law, battery -- all battery, and not merely
battery by the merest touching -- was a misdemeanor, not a
felony" (emphasis in original). Johnson v. United States,
559 U.S. 133, 141 (2010).
 17

The Federal armed career criminal act, for instance,

includes among its predicate offenses any "violent felony,"

i.e., felonies having "as an element the use, attempted use, or

threatened use of physical force against the person of another."

18 U.S.C. § 924(e)(2)(B). This language is identical to that

used in G. L. c. 276, § 58A.16 Interpreting the Federal statute,

the United States Supreme Court determined that "physical force"

suggests "a degree of power that would not be satisfied by the

merest touching." See Johnson, 559 U.S. at 138-139, quoting

Webster's New International Dictionary 985 (2d ed. 1954)

(defining "force" as, among other things, "[p]ower, violence,

compulsion, or constraint," "often an unusual degree of strength

or energy"). The Court therefore concluded that a battery,

within the meaning of the statute, did not include an element of

"physical force." Id. (State interpretation of battery included

any "intentional physical conduct" made "without consent"

[citations omitted]).

We similarly have held that offensive battery does not

include an element of "physical force" for purposes of the

Massachusetts armed career criminal act. There, the force

16 General Laws c. 276, § 58A, was enacted in 1994. See
St. 1994, c. 68, § 6. The relevant language appeared in the
Federal armed career criminal act as early as 1984. See Pub.
L. 98-473, Title II, §§ 223(a), 1005(a), 98 Stat. 2028, 2138
(1984).
 18

clause defines a "violent crime" as any felony having "as an

element the use, attempted use or threatened use of physical

force or a deadly weapon against the person of another." G. L.

c. 140, § 121. Adopting "violent or substantial force capable

of causing pain or injury" as the relevant definition, we

determined that a conviction of assault and battery, not

distinguishing between harmful, reckless, or offensive battery,

does not necessarily imply an element of physical force. See

Eberhart, 461 Mass. at 818-820 ("Harmful battery and reckless

battery do have as an element the use of 'physical force'

sufficient to implicate the sentencing enhancement. Offensive

battery, however, . . . does not"). See also Colon, 81 Mass.

App. Ct. at 17-18.

We note that the force clause of the dangerousness statute,

G. L. c. 276, § 58A, was modeled on that in the Federal Bail

Reform Act of 1984. See 18 U.S.C. § 3156, amended by Pub. L.

98-473, Title II, §§ 203(c), 223(h), 98 Stat. 1985, 2029 (1984).

See Brangan, 477 Mass. at 704. The Federal statute enumerates,

as predicate offenses eligible for pretrial detention, those

offenses having "as an element of the offense the use, attempted

use, or threatened use of physical force against the person or

property of another." 18 U.S.C. § 3156(a)(4). The statute

specifies that these are not mere crimes of physical contact,

but, rather, "crime[s] of violence." Id.
 19

Where a word or phrase "is obviously transplanted from

another legal source, . . . it brings the old soil with it."

See Castleman, 572 U.S. at 176 (Scalia, J., concurring), quoting

Sekhar v. United States, 570 U.S. 729, 733 (2013). The force

clause of G. L. c. 276, § 58A, mirrors language elsewhere that

defines a "violent felony," 18 U.S.C. § 924(e)(2)(B); a "violent

crime," G. L. c. 140, § 121; and a "crime of violence," 18

U.S.C. § 3156(a)(4). We are aware of no similar language in any

Massachusetts or Federal statute that has been interpreted to

mean the use of force so minimal as to encompass an offensive

battery.

We previously have declined to adopt the sweeping

definition of force that the Commonwealth proposes, see Barnes,

481 Mass. at 230, and we see no reason to do so here.

Accordingly, we determine that indecent assault and battery on a

child under the age of fourteen, G. L. c. 265, § 13B, does not

contain an element of physical force, and cannot qualify as a

predicate offense under G. L. c. 276, § 58A.

3. Conclusion. The matter is remanded to the county court

for entry of an order affirming the District Court judge's order

denying pretrial detention.

So ordered.