Commonwealth v. Fay, 467 Mass. 574

Background

Defendant convicted multiple times (1995–2010) of open and gross lewdness and indecent exposure involving children under 14; pattern included approaching, luring, exposing, and in one instance allegedly cornering a 13‑year‑old.
At a jury‑waived trial (Oct. 15, 2012) the judge found defendant suffered from pedophilia and exhibitionism and was likely to reoffend with noncontact sexual offenses (exposure, masturbation) directed at children.
Two Commonwealth experts diagnosed pedophilia and exhibitionism and opined defendant was likely to target children and cause them fear; defense experts agreed he would likely reoffend but not with contact offenses.
The judge concluded defendant’s predicted noncontact offenses would instill in child victims a reasonable apprehension of being subjected to a contact sex offense and ordered civil commitment under G. L. c. 123A § 14(d).
Defendant appealed, arguing (1) insufficient evidence to show he is a “menace” because the judge relied on acquitted conduct and only predicted noncontact offenses; (2) as matter of law noncontact offenders cannot be committed under c. 123A; and (3) commitment based on nonviolent, noncontact offenses violates substantive due process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence sufficed to find defendant a "menace" under G. L. c. 123A	Commonwealth: past convictions, diagnoses, and pattern of luring/approaching support that predicted noncontact offenses will instill fear of contact offenses in child victims	Defendant: judge improperly relied on alleged "confining" conduct tied to an acquittal; without that, luring/approach evidence is insufficient	Evidence sufficient; judge rightly considered facts of convictions and conduct; pattern of luring/approach supports menace finding
Whether a defendant likely to commit only noncontact sexual offenses can be a "menace"	Commonwealth: legal standard asks whether predicted offenses will objectively instill reasonable apprehension of contact offense; noncontact offenders can be menaces depending on facts	Defendant: as a matter of law, noncontact-only offenders cannot be classified a menace under statute	Court holds noncontact‑only offenders may be menaces if their predicted conduct would reasonably instill fear of a contact sex crime in victims
Whether consideration of acquitted conduct (Athol incident) was improper	Commonwealth: judge may consider circumstances of predicate offenses even if acquitted of related charges	Defendant: reliance on alleged confining behavior from an acquitted rape charge was improper	Court: proper to consider circumstances attendant to convictions; not erroneous to consider evidence of confining conduct despite acquittal on a separate charge
Whether commitment for likely noncontact offenses violates substantive due process	Commonwealth: protecting children from conduct that causes reasonable apprehension of contact is a constitutionally adequate purpose; c.123A satisfies procedural and substantive safeguards	Defendant: commitment based solely on predicted nonviolent, noncontact conduct is unconstitutional deprivation without predicted violence or contact	Court: commitment is permissible where noncontact conduct toward children is likely to produce reasonable fear of contact; c.123A meets due process in these circumstances

Key Cases Cited

Commonwealth v. Suave, 460 Mass. 582 (court explained “menace” requires predicted conduct to instill reasonable apprehension of contact sex crime)
Kansas v. Hendricks, 521 U.S. 346 (upholding civil commitment statute coupling dangerousness with mental abnormality)
Kansas v. Crane, 534 U.S. 407 (clarifying proof-of-control requirement for commitment statutes)
Commonwealth v. Kessler, 442 Mass. 770 (noting heightened risk of harm when victims are children)
Addington v. Texas, 441 U.S. 418 (standard and due process principles for civil commitment)
Jones v. United States, 463 U.S. 354 (state must have constitutionally adequate purpose for confinement)
O'Connor v. Donaldson, 422 U.S. 563 (confinement requires justification beyond harmlessness)
New York v. Ferber, 458 U.S. 747 (protecting children from sexual exploitation is compelling state interest)