FORMULATING YOUR SENTENCING RECOMMENDATION

8.4.FORMULATING YOUR SENTENCING RECOMMENDATION

8.4.1.Special Challenges in Sentencing Crimes of Domestic Violence and Sexual Assault

As with all cases, your recommendation for sentencing in domestic violence or sexual assault cases should be based on the facts of the case and should comport with sentences for other similar crimes. However, additional issues may arise:

8.4.2.Standards for the Sentencing Judge

8.4.3.Factors for the Prosecutor to Consider

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  Defendant’s Prior Record
  
• 
  Defendant’s Past Abuse
  
• 
  Defendant’s Admissions, Cooperation, Remorse
  
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  Injuries to the Victim
  
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  Lethality/Danger Assessment
  
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  Nature of the Offenses
  

• 
  Victim’s Views
  

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  Victim’s Safety
  
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  General Information About the Defendant
  

8.4.4.Sentencing Memoranda

“just” assaults, or “just” A&B DWs;

abusive behaviors; and

of the defendant’s crimes.

8.5. POST-TRIAL COMMUNICATIONS

The Mass. Rules of Prof. Conduct, Rule 3.5(d), adopted in January 1998, governs prosecutors’ communications with jurors after the trial is over. Lawyers are not to initiate contact with jurors, directly or indirectly. If jurors contact you, you may respond; but you must refrain from asking any questions intended to harass or embarrass the juror. In no circumstances are you allowed to make inquiry regarding the deliberation process.

8.6.CIVIL COMMITMENT OF A SEXUALLY DANGEROUS PERSON

Massachusetts has a civil commitment law for sexually dangerous persons.

Pursuant to Mass. Gen. Laws ch. 123A, the District Attorney may file a civil commitment petition for the civil commitment of “sexually dangerous persons” who are likely to commit a sexual offense again if not confined to a secure facility.



A SEXUALLY DANGEROUS PEROSN (SDP):

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  Has been convicted of a sexual offense as a juvenile or an adult OR has been charged with a sexual offense and determined to be incompetent to stand trial; AND suffers from a mental abnormality or personality disorder which makes them likely to engage in sexual offenses if not confined to a secure facility;
  
• 
  OR
  
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  Has been previously adjudicated SDP and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, and as a result is likely to attack or otherwise inflict injury on victims;
  
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  May be flagged as a possible SDP six months prior to his release from a secure facility.
  

The procedure for committing a potential sexually dangerous person is as follows:

1. 
   The District Attorney determines a person is a potential SDP and files a commitment petition.
   

2. 
   An ex parte hearing is held. The standard is the same as that for probable cause to arrest.
   

3. 
   If the Court finds sufficient facts, a probable cause hearing is ordered.
   

4. 
   The probable cause hearing is held. The standard is the same as that for a directed verdict.
   

5. 
   If probable cause is found the offender is committed to the Massachusetts Treatment Center for a 60-day evaluation.
   

6. 
   Evaluations of the offender are reported back to the Court within 45 days of the commitment.
   

7. 
   Within 14 days of the report, the District Attorney’s and/or the Attorney General’s office decides whether to withdraw the commitment petition or file the petition for trial.
   

8. 
   If a petition for trial is filed, and if good cause for an extension is not found, the trial will be held within 60 days after the trial petition is filed. (The offender remains committed to the Massachusetts Treatment Center during this time.)
   

9. 
   If a unanimous jury finds the offender to be a sexually dangerous person beyond a reasonable doubt, the offender is committed to the Massachusetts Treatment Center for one day to life.
   

10. 
    An offender who is committed to the Massachusetts Treatment Center as a sexually dangerous person is given a Section Nine hearing every year to determine whether he continues to be a sexually dangerous person.
    

The focus at a sexually dangerous person hearing is the state of mind of the defendant; it is not a retrial of the defendant and his crime. The District Attorney relies on expert witnesses, such as forensic psychologists, to prove that the defendant is a SDP.

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  If an offender is released to the community from a criminal commitment and the District Attorney has taken no action to declare him a SDP (notification is only automatic if the victim is registered with the Victim Service Unit, 1-866-6VICTIM);
  
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  If the offender is transferred to the Massachusetts Treatment Center while awaiting a further petition; and/or
  
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  If a Section Nine hearing is scheduled for a committed SDP (scheduled annually).
  

The victim’s role in the SDP process is minimal. The victim will be invited to sit with the District Attorney and will have the process explained to her. She may also state her opinion on whether the offender is a SDP. But in most instances, the victim will not be called to testify at the hearing or trial.

8.7. THE SEX OFFENDER REGISTRY BOARD AND PROSECUTING “FAILURE TO REGISTER” CASES

Indecent assault & battery on a mentally retarded person (Mass. Gen. Laws ch. 265, § 13F);

Indecent assault & battery on a person age 14 or over (Mass. Gen. Laws ch. 265, § 13H);

Rape (Mass. Gen. Laws ch. 265, § 22);

Rape of a child <16 with force (Mass. Gen. Laws ch. 265, § 22A);

Rape and abuse of a child (Mass. Gen. Laws ch. 265, § 23);

Assault with intent to rape (Mass. Gen. Laws ch. 265, § 24);

Assault of a child with intent to rape (Mass. Gen. Laws ch. 265, § 24B);

Kidnapping of a child (Mass. Gen. Laws ch. 265, § 26);

Enticing a child under the age of 16 for the purposes of committing a crime (Mass. Gen. Laws ch. 265, § 26C);

Enticing away a person for prostitution or sexual intercourse (Mass. Gen. Laws ch. 272, § 2);

Drugging persons for sexual intercourse (Mass. Gen. Laws ch. 272, § 3);

Inducing a minor into prostitution (Mass. Gen. Laws ch. 272, § 4A);

Living off or sharing earnings of a minor prostitute(Mass. Gen. Laws ch. 272, § 4B);

Incestuous marriage or intercourse (Mass. Gen. Laws ch. 272, § 17);

Disseminating to a minor material harmful to a minor (Mass. Gen. Laws ch. 272, § 28);

Posing or exhibiting a child in a state of nudity (Mass. Gen. Laws ch. 272, §

29A);

Possession of child pornography (Mass. Gen. Laws ch. 272, § 29C);

Unnatural and lascivious acts with a child under 16 (Mass. Gen. Laws ch. 272, § 35A);

Aggravated Rape (Mass. Gen. Laws ch. 277, § 39);

2^nd/Subseq. Open and Gross lewdness and lasciviouss behavior (Mass. Gen. Laws ch. 272, § 16);

Attempts to commit a violation of any of these sections pursuant to Mass. Gen. Laws ch. 274, § 6.

Violation of a similar statute in another state will also trigger the registration requirement.
The offenders are classified by levels.
Level One Offenders

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  pose a low risk of recidivism and degree of dangerousness
  
• 
  the classification information is for law enforcement only; the public does not have access to these offenders’ information
  

• 
  pose a moderate level of danger
  
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  the public may request sex offender information from police or the Board about Level Two Offenders
  
• 
  
  

• 
  pose a high risk and danger
  
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  there is active community notification, including posting on the SORB’s internet website (http://www.mass.gov/sorb)
  

The classification review is conducted by the Board. Victims (and parent/guardians of child victims) may submit written victim impact statements to influence the Board’s decision.

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  The person asking for the information must be at least 18 years old.
  
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  The person asking for the information must be seeking it for his or her own protection, the protection of a child under 18 years of age, or for the protection of another person for whom the requesting person has responsibility, care or custody.
  

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  Identifying a specific individual by name or personal identifying information;
  
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  Inquiring whether any sex offenders live or work on a specific street address within that city or town;
  
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  Inquiring whether any sex offenders live, works or attends an institution of higher learning within the same city or town of a specific address, including but not limited to, the address of a residence, school, day-care center, playground or other identified address; or
  
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  Inquiring in another city or town whether any sex offenders live or work within that city or town.
  

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  The name of the sex offender;
  
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  The offender’s home and work addresses;
  
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  The name and address of the institution of higher learning where the sex offender works or is enrolled as a student (if applicable);
  
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  The offense(s) for which the offender was convicted or adjudicated and the date(s) of the conviction(s) or adjudications(s);
  
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  The offenders age, sex, race, height, weight, eye and hair color; and
  
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  A photograph of the sex offender, if available.
  

Information is also available from the Board by mail, when the person requesting the information identifies an individual by name, date of birth or sufficient identifying characteristics. The Board will provide a report that includes whether the person identified is a sex offender with an obligation to register the offenses, and the date(s) of the conviction(s) or adjudication(s). Forms for requesting information from the Board are available on the Board’s Internet website at http://www.mass.gov/EOPS/docs/sorb/request_tosorb.pdf.

Registration Unit

Sex Offender Registry Board

P.O. Box 4547

Salem, Massachusetts 01970

Fax: 978.740.6464

9.APPENDICES

9.1. APPENDICES TO SECTION ONE, “BACKGROUND INFORMATION”

9.1.1.Massachusetts Policy for Law Enforcement Response to Domestic Violence (Law Enforcement Guidelines)

9.1.2.Massachusetts Policy for Law Enforcement Response to Sexual Assault

9.1.3.Complaint for Protection from Abuse

9.1.4.Abuse Prevention Order

9.1.5.Abuse Prevention Form (After Hours)

9.1.6.Defendant Information Form

9.1.7.Confidential Information Form

9.1.8.MOVA's Stalking Incident Log

9.1.9.An Act Relative to Harassment Prevention Orders

9.1.10.Amendments to c. 258E 2010

9.1.11.All Court Forms for c. 258E

9.1.12.District Court c.258E Memo

9.1.13.Info Sheet at Court for 258E

9.1.14.Intake Sheet 258E Juvenile

9.2. APPENDICES TO SECTION TWO, “VICTIM ADVOCACY”

9.2.1.Risk Benefit Analysis for Children Testifying in Domestic Violence Cases

9.2.2.MOVA's Safety Plan Information

9.3.APPENDICES TO SECTION THREE, “ ASSESSMENT & INVESTIGATION”

9.3.1.Sample Grand Jury Subpoena

9.3.2.Sample Preservation Letter

9.3.3.Sample Application and 2703D Order

9.3.4.Sample Search Warrant Application and Affidavit

9.3.5.Sample Appendix For Search Items in Support of Search Warrant Application

9.3.6.Sample Exhibit 1 in Support of Search Warrant Application

9.3.7.Sample Exhibit 2 in Support of Search Warrant Application

9.3.8.Sample Pen Register and Trap and Trace Application and Order

9.3.9.Sample Language for Search Warrants and Accompanying Affidavits

9.3.10.E Mail Tutorial How to Capture IP Addresses

9.3.11.Sexual Assault Evidence Collection Kit Instructions

9.3.12.Sexual Assault Evidence Collection Kit Forms 1-6

9.3.13.Provider Sexual Crime Report Form (PSCR)

9.4.APPENDICES TO SECTION FOUR, “ INITIATING THE PROSECUTION”

9.4.1.Order of Pretrial Detention Court FormCourt Form: Order of Pretrial Detention

9.4.2.Order of Conditional Release Court Form

9.5.APPENDICES TO SECTION FIVE, “ DISCOVERY”

9.5.1.SJC Revised Model Forms, Notices, Summonses

9.6.APPENDICES TO SECTION SEVEN, “TRIAL STRATEGIES”

9.6.1.Model Jury Instructions for Rape, Aggravated Rape and Assault with Intent to Rape

9.6.2.Suggestions for Witnesses

9.6.3.Sample Cross for Recanting, Minimizing or Reluctant Victim

9.7.APPENDICES TO SECTION EIGHT, “POST-CONVICTION”

9.7.1.Sample Sentencing Memorandum

9.7.2.Differences Between Anger Management and Certified Batterer Intervention Programs

9.7.3.Prosecutors' Guide to Massachusetts Sex Offender Registry Law