Supreme Judicial Court Rejects Civil Commitment for Exhibitionist

The Boston Globe reports today the Supreme Judicial Court affirmed a superior court decision, which held that a repeat exhibitionist, or flasher, could not be civilly committed under the state’s sexual predator laws, saying there is no evidence that the man poses any danger to anyone.

The ruling was restricted to the case of [the offender], but it could put more of a burden on prosecutors seeking to commit sexual offenders who have no history of posing physical threat of harm, known as contact crimes, according to legal analysts.

[The offender] is a 55-year-old who has been convicted of open and gross lewdness seven times, mostly for flashing young adult woman, sometimes while masturbating, and he has told medical examiners that he has done it as many as 30 times since he was 13 years old.

But in a ruling issued yesterday, the state Supreme Judicial Court drew a distinction between [the offender]’s conduct and the type of menacing threat of harm that would necessitate his commitment under sexual predator laws, such as stalking someone while flashing, or doing it in front of a child.

“The Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime,’’ the court said in a decision written by Justice Francis X. Spina.

“A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.’’

While maintaining that the ruling was restricted to [the offender], Spina also wrote that the decision should not suggest that every sex offender who has committed only noncontact crimes such as flashing do not pose a threat to the health and safety of others.

“Each case is specific,’’ Spina wrote. “We can easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant.’’

The ruling is still significant in that it has set a benchmark for prosecutors looking to civilly commit a sex offender, even if that offender has not caused physical harm to anyone. The ruling, for instance, could protect people who possessed child pornography – rather than distributed it or harmed a child in the process – from commitment.

Legal analysts say that the ruling does not affect offenders who have caused harm to others, or created the threat of it. The ruling, for instance, affirms that a flasher who stalks someone, lurks around a particular area such as a bathroom, or who targets a particular person could be considered a menace to someone if that person feels threatened.

The high court affirmed an Essex Superior Court ruling. The Superior Court judge found that while [the offender] could have been committed under the language of state laws, it would be unconstitutional to do so because prosecutors never demonstrated that his convictions were predictors that he would harm someone or create that menacing threat necessary to commit him.

The high court did not address whether the state law is unconstitutional, but it determined that [the offender] could not be committed under the state laws because he did not cross the threshold of being a menace.

This decision is important for many individuals sex offenders as this interpretation has led to many attempts to civilly commit individuals. Upon release from prison, it is important to know that the failure to register as a sex offender is a serious crime in Massachusetts with devastating consequences. If you have questions regarding your Massachusetts sex offender classification or are already a registered Massachusetts sex offender who wants assistance in reviewing or challenging his or her classification, or to request further information, you need a Boston sex offender attorney. Please contact Attorney Crouch at (617) 441-5111 or email him to set up a free, initial consultation. To request further information please contact us.