Commonwealth v. McGhee, 472 Mass. 405

Background

In December 2012 a grand jury indicted Tyshaun McGhee and Sidney McGee on multiple counts, including G. L. c. 265, § 50 (trafficking persons for sexual servitude) and G. L. c. 272, § 7 (deriving support from a prostitute), based on conduct involving three adult women (C.C., S.E., B.G.) and ads posted to Backpage.com.
Evidence at trial showed defendants recruited homeless or substance-dependent women, photographed and advertised them online, directed meetings with men for paid sex, accompanied them, and in some instances retained the money.
Both defendants were convicted under § 50; Tyshaun was also convicted under § 7 on two counts but acquitted of aggravated rape; Sidney was acquitted of the § 7 counts.
Defendants challenged § 50 as unconstitutionally vague and overbroad (facial and as-applied), argued the statutory phrase "commercial sexual activity" was overbroad, and raised evidentiary and Confrontation Clause objections to admission of a witness’s grand jury testimony and limits on cross-examination of C.C.
The trial judge admitted limited portions of a witness’s grand jury testimony substantively after finding the witness was feigning memory; the court excluded reference to certain pending charges and to the victim’s prior sexual conduct under the rape-shield statute.
The SJC affirmed the convictions under § 50, upheld the admission of grand-jury testimony and rulings limiting cross-examination, but held Tyshaun’s § 7 sentences were illegal (exceeded statutory maximum) and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (McGhee/McGee)	Held
Vagueness of G. L. c. 265, § 50 (as applied)	§ 50 gives fair notice; mens rea "knowingly" and statutory definitions suffice	§ 50 is vague because it omits force/coercion element and may criminalize assisting consenting adults	Statute not unconstitutionally vague; mens rea + statutory language give adequate notice and limit arbitrary enforcement
Overbreadth / First Amendment freedom of association (facial)	§ 50 targets nonprotected conduct (trafficking) and proscribed acts, so not overbroad	§ 50 could criminalize benign associations (family, shelters) with known prostitutes	Statute not overbroad; it criminalizes specific acts enabling commercial sexual activity, not mere association
Scope of "commercial sexual activity" definition	Read to cover sexual acts for value involving physical contact; consistent with legislative purpose to target trafficking	Definition is overbroad and could capture non‑trafficking sexual-commercial speech/services (e.g., phone sex, dancers)	Term construed to require physical-contact sexual acts for value; avoids overbreadth concerns
Substantive admission of witness’s grand jury testimony	Admissible where witness is present, cross-examined, not coerced, and judge finds claimed lack of memory feigned	Admission improper because witness genuinely lacked memory, possible coercion of grand jury testimony, and prejudice	Admission proper here: judge reasonably found feigned memory, testimony not coerced, witness available for cross-examination; limited portions admissible

Key Cases Cited

Commonwealth v. Johnson, 470 Mass. 300 (SJC 2014) (standard of review for legal questions; de novo review)
Commonwealth v. Disler, 451 Mass. 216 (SJC 2008) (vagueness doctrine and statutory construction principles)
Commonwealth v. Daye, 393 Mass. 55 (SJC 1984) (prior grand jury testimony may be admitted substantively if conditions met)
Commonwealth v. Sineiro, 432 Mass. 735 (SJC 2000) (Daye rule extended to witnesses who feign memory)
Broadrick v. Oklahoma, 413 U.S. 601 (U.S. Sup. Ct. 1973) (overbreadth doctrine: must be substantial in relation to legitimate sweep)
Grayned v. Rockford, 408 U.S. 104 (U.S. Sup. Ct. 1972) (vagueness concerns re: notice and arbitrary enforcement)
Commonwealth v. Zubiel, 456 Mass. 27 (SJC 2010) (criminal statutes must define offense with sufficient definiteness)