Commonwealth v. Wilbur W., a juvenile, 95 N.E.3d 259

Background

In 2009 a 12-year-old juvenile was charged after an 8-year-old alleged the juvenile sexually coerced and assaulted him during a sleepover; jury convicted the juvenile of statutory rape (G. L. c. 265, § 23) as a lesser included offense; juvenile sentenced to probation and later relieved of sex-registration duty.
Trial evidence: prosecution presented that the juvenile instructed the victim to stand out of sight, pull down his pants, perform oral sex, then inserted his penis anally; victim testified he was scared and complied.
Juvenile argued on appeal that applying strict liability statutory rape to a child under 16 (here, a 12‑year‑old) violated due process, was unconstitutionally vague (encouraging arbitrary enforcement), and amounted to selective/unequal prosecution.
The Supreme Judicial Court exercised discretion to reach constitutional claims raised for the first time on appeal because the record was developed and issues presented important questions.
The court affirmed the adjudication, holding that strict liability statutory rape as applied to these facts did not violate due process, was not unconstitutionally vague in this instance, and the juvenile failed to make a prima facie showing of selective prosecution.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Due process — application of strict liability to juveniles	Juvenile: imposing strict liability on a 12‑year‑old for conduct premised on incapacity to consent is fundamentally unfair; juveniles lack capacity to assume legal risks of sex	Commonwealth: Legislature rationally may impose strict liability to protect children under 16; elements are intercourse + victim <16	Court: Rational‑basis review applies; statute rationally furthers protecting children; conviction constitutional on these facts
Vagueness / arbitrary enforcement	Juvenile: § 23 invites arbitrary enforcement when peer‑aged sexual experimentation blurs victim/offender lines	Commonwealth: prosecutor reasonably prosecuted here given age gap, coercion, and setting	Court: Statute gives fair notice; no arbitrary enforcement shown on these facts; conviction stands
Equal protection / selective prosecution	Juvenile: prosecution singled him out though both participants could be similarly situated	Commonwealth: broad prosecutorial discretion; record shows juvenile was aggressor, not similarly situated	Court: Juvenile failed to make rigorous prima facie showing of impermissible discrimination; claim fails
Elemental construction — whether "abuse" is separate element (concurring)	Juvenile: (raised indirectly) statute should require mens rea/abuse element when both participants <16	Concurring justice (Gants, C.J.): argues § 23’s phrase “abuses a child” could/should be read to require a separate abuse finding prospectively when both participants are <16 to avoid arbitrary enforcement	Majority: did not alter elements; concurrence would require prospective change to require proof of abuse where both participants are minors

Key Cases Cited

Commonwealth v. Bernardo B., 453 Mass. 158 (2009) (describing statutory rape elements and prior interpretations)
Commonwealth v. Miller, 385 Mass. 521 (1982) (statutory rape as strict liability; mistake as to age not defense)
Commonwealth v. Gallant, 373 Mass. 577 (1977) (history and application of statutory rape law)
Commonwealth v. Murphy, 165 Mass. 66 (1895) (Legislature places age‑mistake risk on actor)
Commonwealth v. Knap, 412 Mass. 712 (1992) (mens rea not constitutionally required for child sexual assault statutes)
Morissette v. United States, 342 U.S. 246 (1952) (general principle that mens rea is usual but not always required)
Wayte v. United States, 470 U.S. 598 (1985) (prosecutorial discretion and limits)
Skilling v. United States, 561 U.S. 358 (2010) (void‑for‑vagueness standard regarding notice and arbitrary enforcement)
Kolender v. Lawson, 461 U.S. 352 (1983) (importance of minimal guidelines to govern law enforcement to avoid arbitrary enforcement)