(dissenting in part). I respectfully dissent insofar as the majority affirms the defendant’s convictions of attempted rape of a child and attempted indecent assault and battery on a child under the age of fourteen. In my view, under long-standing legal principles — recently reiterated by the Supreme Judicial Court in Commonwealth v. Bell, 455 Mass. 408 (2009) (Bell)1 — the defendant’s actions did not come near enough to the accomplishment of the substantive offenses to be punishable as attempts.
The Commonwealth concedes this point in its brief, stating: “After [the defendant’s] convictions in this case, the Supreme Judicial Court issued the decision in . . . Bell, holding that there is insufficient proof of attempt when a person arranges to have sexual intercourse with a child under the age of 16 and then travels to a prearranged location in a parking lot, without any further action. . . . Bell, 455 Mass. at 415-416. The Commonwealth cannot distinguish the facts of this case from . . . Bell. Also Commonwealth v. Pitts, 76 Mass. App. Ct. 1118, [further appellate review] denied, 458 Mass. 1109 (2010) (unpublished; indistinguishable). ”
Unlike the majority, I consider the Commonwealth’s confession of error to be well taken; also unlike the majority, I do not understand the Commonwealth’s position to turn on the fact that the child whom the defendant planned to meet was fictitious. See ante at note 5. The Commonwealth’s concession is simply an acknowledgment that criminal liability for attempt requires closer temporal and physical proximity to the commission of the substantive crimes than is present in this case.
As explained in Bell, Massachusetts has long given the statutory crime of attempt, G. L. c. 274, § 6, a narrow interpretation. “In Massachusetts, a defendant must have the present opportunity to commit the substantive crime.” 455 Mass. at 415. Put another way, “[t]he defendant must have had ‘a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it ouf ” (emphasis supplied). Id. at 416, quoting from Commonwealth v. Peaslee, 177 Mass. 267, 273-274 (1901). “[W]e look to the *18actions left to be taken, or the ‘distance or gap between the defendant’s actions and the (unachieved) goal of the consummated crime — the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt.’ ” Bell, supra at 415, quoting from Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 258 (2001). When we apply these principles here, despite the details identified by the majority in an effort to distinguish Bell, the fact remains that the defendant was intercepted at a point in time and place where the commission of the crimes of rape and indecent assault and battery remained too uncertain and remote to support convictions for attempt.
Other jurisdictions may take a more expansive view of attempt; however, as observed in Bell, any effort to broaden the scope of our attempt statute beyond its traditional, narrow interpretation is a matter committed to the Legislature. Id. at 414. Significantly, despite having had opportunities to make such a change, the Legislature has chosen not to do so. As noted in Bell, in 1972, the Legislature considered legislation that would have brought Massachusetts law closer to the broader formulation of attempt contained in the Model Penal Code, but did not enact such a statute for general attempt. Id. at 415 n.14. Even more telling is that, in 2002, the Legislature specifically addressed the failure of existing law to criminalize predatory behavior against children that did not rise to the level of attempt and, rather than making changes to the general attempt statute, created the new crime of child enticement. See G. L. c. 265, § 26C, inserted by St. 2002, c. 385, § 3; Commonwealth v. Disler, 451 Mass. 216, 229 (2008) (child enticement statute “enacted as part of comprehensive legislation to protect children from predators”).
The impetus for the child enticement statute was the decision of the Supreme Judicial Court in Commonwealth v. Gorassi, 432 Mass. 244 (2000), in which the court held the evidence to be insufficient on two of three convictions of assault with intent to commit the felony of kidnapping, because, as to those indictments, the Commonwealth had failed to introduce any evidence that the defendant either attempted a battery or placed his potential victims in fear of imminent battery. Id. at 249-250. Even beyond concern about the specific circumstances of *19Gorassi,2 however, advocates for remedial legislation focused broadly on what was understood to be a gap in existing law that allowed predators to escape punishment for luring children with the intent to commit sex crimes.
A November 20, 2002, memorandum from the Executive Office of Public Safety addressed to the Governor’s Legislative Office and the Governor’s Legal Office, evaluating the enticement statute as enacted by the Legislature, stated, inter alia: “The creation of the enticement crime is critical to public safety. At least one serious, frightening, and common enticement type offense was overturned by the Supreme Judicial Court because of the absence of this crime [citing to Gorassi]. Additionally, this crime will clearly define the prosecution of sex offenders who attract vulnerable children in Internet instant-messaging systems or ‘chat rooms’ and convince the unwitting children to meet at an arranged location where the offender is prepared to engage in sex crimes. While many other jurisdictions have such a crime . . . Massachusetts does not[,] which has hampered prosecution of these dangerous offenders . . . .” Memorandum from Noelle Logue, Executive Office of Public Safety, to Liz Swieszkowski, Governor’s Legislative Office, & Sara Lombardi, Governor’s Legal Office (Nov. 20, 2002) (on file with the Massachusetts Archives).
Similarly, a November 27, 2002, memorandum to Acting Governor Jane Swift from her legal counsel, recommending that she sign the child enticement bill, explained: “Currently, the Commonwealth does not have a criminal law pertaining to the enticement of a child for the purpose of committing a crime. In cases where an individual entices a child or preys on a child’s psychological state without meeting the elements of an assault or attempted kidnapping, prosecutors are unable to establish criminal culpability [citing to Gorassi]. Moreover, the use of the Internet as a mechanism to lure children to locations for the *20purposes of committing a crime further highlighted the need for an enticement law, leading [to introduction of the legislation] in 2001.” Memorandum from David L. Veator, Deputy Chief Legal Counsel, & Jed M. Nosal, Deputy Legal Counsel, to Jane M. Swift, Acting Governor, Commonwealth of Mass. (Nov. 27, 2002) (on file with the Massachusetts Archives).
Here, the defendant was properly charged with and convicted of child enticement. Accordingly, as the Legislature intended, he will not go unpunished even though the facts of his case do not satisfy the criteria for conviction of attempted rape or attempted indecent assault and battery.
In short, under well-established law, and as conceded by the Commonwealth, I would hold that the defendant’s convictions on the indictments charging him with attempted rape of a child and attempted indecent assault and battery on a child under the age of fourteen must be reversed.
As noted by the majority, Bell was a split decision. It is, of course, the majority opinion that must guide our decision here.
The evidence in Gorassi was that the defendant had walked behind two young girls in the hallways of a hotel, following them for a total of 326 feet. He then caught up to them, inquired whether they knew where the outdoor pool was located, and asked them to come with him and show him. When one of the girls said no, the defendant asked the girls their names, and if they wanted to see something pretty. The girls then ran back to their rooms. Gorassi, 432 Mass. at 245.