99 N.E.3d 827
Mass. App. Ct.2018Background
- Defendant (nearly 60) was convicted after a jury trial of two counts of indecent assault and battery on a person under 14 (subsequent offender) based on three interactions with Jane, a 13‑year‑old intern at an aviation company. Sentence included a mandatory minimum of 15 years. Verdicts on related counts varied (one acquittal; one nol pros).
- Facts (viewed in Commonwealth's favor): defendant led Jane to a private room, gave a brief shoulder hug, a second tighter hug with a kiss on the neck (which Jane thought was culturally consistent), and a third hug lower on her waist/hips; he then grabbed the bottom of her polo at the right hip, lifted it slightly without exposing skin, and briefly held her hand before leaving. Jane testified she was alarmed by the waist hug and the shirt lift.
- Trial judge denied the defendant's motion for required findings at the close of the Commonwealth's case; defendant appealed claiming insufficient evidence that the touching was "indecent."
- Statutory elements for indecent assault and battery on a child (G. L. c. 265, § 13B): (1) victim under 14; (2) intentional touching without legal justification; (3) touching was indecent. Only element (3) was contested on appeal.
- The Appeals Court reversed: although conduct was improper and contextual factors (age disparity, seclusion) could support wrongdoing, the court held the hug and the slight lifting of the shirt, absent exposure or contact with traditionally intimate areas or other overt sexualized conduct, were not objectively "indecent" as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove the touching was "indecent" under §13B | The context (age gap, seclusion, unwanted hugging, shirt lift) and sexual overtones make the contact indecent | The contact (parental‑style hug; slight non‑exposing lift of shirt) did not touch intimate areas or involve overtly sexualized conduct | Reversed: insufficient evidence that the hug or slight shirt lift were "indecent" as a matter of law |
| Whether contextual factors (age disparity, secrecy) convert non‑intimate touching into indecent touching | Context can render non‑intimate contact indecent; jury could reasonably find indecency | Context alone cannot render innocuous contact indecent absent objectively sexualized physical invasiveness | Court: context relevant but insufficient here to make the contact indecent |
| Whether lack of exposure or contact with enumerated sexual parts precludes indecency conviction | Commonwealth: indecency not limited to enumerated parts; other touchings can be indecent | Defendant: absent contact with intimate parts or overt sexualized conduct, conviction cannot stand | Court: without exposure, contact with enumerated parts, or comparable invasiveness, guilty verdicts were unsupported |
| Appropriate remedy given insufficiency of evidence | Commonwealth: uphold verdicts | Defendant: reverse judgments and set aside verdicts | Court: judgments reversed; verdicts set aside; judgment entered for defendant |
Key Cases Cited
- Commonwealth v. Hilton, 398 Mass. 63 (court reviews sufficiency of evidence standard) (1986)
- Commonwealth v. Latimore, 378 Mass. 671 (standard for required findings/motion for directed verdict) (1979)
- Commonwealth v. Mosby, 30 Mass. App. Ct. 181 (indecent touching of enumerated intimate areas) (1991)
- Commonwealth v. Mamay, 407 Mass. 412 (mouth interior as intimate part in certain circumstances) (1990)
- Commonwealth v. Castillo, 55 Mass. App. Ct. 563 (context and age disparity can inform indecency; forced tongue into mouth) (2002)
- Commonwealth v. Vazquez, 65 Mass. App. Ct. 305 (touching other intimate parts may violate contemporary privacy norms) (2005)
- Commonwealth v. Kopsala, 58 Mass. App. Ct. 387 (removal/exposure of clothing can support indecent assault) (2003)
- Commonwealth v. Miozza, 67 Mass. App. Ct. 567 (indecent touching not limited to listed areas) (2006)
- Commonwealth v. Lavigne, 42 Mass. App. Ct. 313 (test for indecency is objective; focuses on nature of conduct) (1997)