Commonwealth v. Suave, 460 Mass. 582

Defendant, 53, has eight prior sex/offense convictions (open and gross lewdness or indecent exposure), all non-child victims; youngest victims appear to be 18.
He reported exposing himself 20–30 times since age 13, with about 10 arrests; youngest victim claimed by him was 16, but he did not know at the time.
Commonwealth filed G. L. c. 123A petition for commitment as a sexually dangerous person; he has been in custody since the petition to March 25, 2010.
A judge found the offense a “sexual offense,” recognized exhibitionism as a mental disorder, and held future noncontact offenses could render him a menace under the statute.
Judge concluded the statute could be construed to permit commitment based on noncontact offenses and rejected the constitutional challenge; Commonwealth appealed seeking stay of release.
Massachusetts Supreme Judicial Court affirmed, but on statutory construction rather than constitutional grounds, and held the defendant is not a sexually dangerous person under the statute.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the statute permits commitment for noncontact offenses based on mental abnormality	Commonwealth contends the statute, properly construed, allows such commitment	Spina contends the statute requires a menace to health and safety tied to contact offenses	Statute, properly construed, does not permit based on noncontact offenses given record
Meaning of ‘menace’ in the mental abnormality element	Commonwealth argues menace can be implied by future risk	Spina argues menace requires threat of contact sexual violence	‘Menace’ requires risk of imminent bodily harm from a contact sex crime; noncontact alarm alone is insufficient
Whether evidence of noncontact past/future offenses suffices to establish likelihood of future offenses	Commonwealth argues recurrence of noncontact offenses shows likelihood	Spina argues lack of stalking/approach/touch limits likelihood to noncontact offenses	Record does not show likelihood of contact offenses; cannot satisfy the third element under statute
Whether constitutional question is resolved by statutory interpretation	Commonwealth relies on statutory meaning to support conviction	Spina argues constitutional issue unnecessary if statute misapplied	Court avers no need to decide constitutional question given statutory interpretation defeats commitment

Commonwealth v. Kessler, 442 Mass. 770 (2004) (defined alarm or shock as negative emotions; used in context of ‘menace’)
Commonwealth v. Gorassi, 432 Mass. 244 (2000) (threatened battery concept guidance for ‘menace’)
Commonwealth v. Bruno, 432 Mass. 489 (2000) (civil commitment context for sexually dangerous person standards)
Commonwealth v. Zubiel, 456 Mass. 27 (2010) (defines ‘menace’ in statutory construction)
Kansas v. Hendricks, 521 U.S. 346 (1997) (due process standards for civil commitment of sexually dangerous)
Commonwealth v. Grant, 455 Mass. 1022 (2010) (precedent on grant of commitment not essential where moot)