(dissenting, with whom Lynch and O’Connor, JJ., join). Today a majority of this court allows a judge to sentence a person to a period of imprisonment, not for any existing violation of law, but for his conscientious objection to abortion. I cannot agree that the law permits this, and therefore I dissent.
The trial judge in this case sentenced the defendant to “two and a half years in the House of Correction, one year to serve, the balance suspended for a period of three years.” He then instructed the clerk to read the sentence to the defendant. The defendant was informed that his probation was conditioned on “keeping the peace” and “good behavior.” The clerk then asked the defendant whether he agreed with the terms. The defendant responded by asking, “Do you mean that I will not participate in further rescues?” to which the clerk answered, “I haven’t said that yet.” The defendant, consequently, agreed to those terms. The clerk then read that, as a condition of the suspended sentence, the defendant must not “participate in any unlawful activities of Operation Rescue Boston or any other such similar group.” This time, when the clerk asked whether the defendant recognized, understood and agreed to the terms, the defendant declared, “No, I do not.” The judge retaliated by sentencing the defendant to two and one-half years’ imprisonment with no suspension.
Our law does not permit a judge to punish a defendant for not making a promise in open court. The colloquy above illustrates clearly that to obtain a suspended sentence, Cotter was required to avow that his attempts to “rescue” unborn children were “unlawful activities,” and that he will not participate in them further, regardless of the circumstances. Cotter chose not to make that promise. Thus, by adding one and one-half years of imprisonment to the defendant’s sentence, the judge punished Cotter, not for violating the conditions of his sentence, but for refusing to promise not to violate them. Such conduct by a court is unprecedented and, to my mind, unjustifiable.
*190This case is not entirely dissimilar from the case of Thomas v. United States, 368 F.2d 941 (5th Cir. 1966), in which the United States Court of Appeals set aside a sentence that was imposed because the defendant, though given the option of a more lenient sentence if he said that he was guilty, nevertheless protested his innocence. The court said in Thomas-. “When Thomas received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights,” supra at 946.
I also dissent from the majority’s decision on the issue of venue for the reasons I set forth in Commonwealth v. Brogan, ante 169, 179 (1993).