N.M., a juvenile v. Commonwealth, SJC-12152

Complainant (child) reported that juvenile cousin (14–15 at start) sexually touched and digitally penetrated her repeatedly beginning when complainant was about 5–6; disclosure to mother ~Dec 2014/Jan 2015; police report in May 2015.
SAIN interview repeated the allegations; complainant said sometimes she didn’t want to do it but felt she had to; no threats from the juvenile were reported; they cared about each other and juvenile told complainant to tell her to stop if it hurt.
A grand jury returned a youthful offender indictment charging rape of a child under G. L. c. 119, § 54 and G. L. c. 265, § 23; juvenile moved to dismiss for lack of probable cause that the offense involved infliction or threat of serious bodily harm.
Single justice denied interlocutory review under G. L. c. 211, § 3; juvenile appealed to SJC claiming she would irreparably lose juvenile-only protections (privacy, juvenile disposition) if tried as a youthful offender.
SJC concluded there is no right to interlocutory review as of right in these circumstances but exercised discretion to reach the merits and held the youthful offender portion of the indictment lacked probable cause because the conduct did not involve infliction or threat of serious bodily harm.

Issue	Juvenile's Argument	Commonwealth's Argument	Held
Right to interlocutory review under G. L. c. 211, § 3 of denial of motion to dismiss youthful offender indictment	Interlocutory review is required because trying as youthful offender irreparably deprives juvenile of privacy and juvenile-system protections	No absolute right to interlocutory review; ordinary appellate process is adequate except for very limited rights-not-to-be-tried claims	No right to interlocutory interlocutory review here; single justice did not abuse discretion in denying review, though SJC exercised discretion to reach merits
Probable cause for youthful offender indictment under G. L. c. 119, § 54 (whether offense involves infliction or threat of serious bodily harm)	Digital penetration of a very young child and surrounding facts implicitly communicated a threat of serious bodily harm and thus support youthful offender indictment	Evidence showed no threats or additional violence; conduct did not imply threat of serious bodily harm	Insufficient probable cause: the alleged sexual conduct, without threats or force, did not amount to infliction or threat of serious bodily harm; indictment dismissed

Flood v. Commonwealth, 465 Mass. 1015 (2013) (no general right to interlocutory review of denial of motion to dismiss)
Forlizzi v. Commonwealth, 471 Mass. 1011 (2015) (procedures for single justice review and interlocutory appeals)
Morrissette v. Commonwealth, 380 Mass. 197 (1980) (extraordinary circumstances standard for interlocutory review)
Felix F. v. Commonwealth, 471 Mass. 513 (2015) (analysis of when child sexual conduct implies threat of serious bodily harm)
Commonwealth v. Clint C., 430 Mass. 219 (1999) (factors supporting implied threat: authority over victim, age gap, invasive coerced act)
Commonwealth v. Washington W., 462 Mass. 204 (2012) (physical force causing fall to ground supports implied threat)
Commonwealth v. Quincy Q., 434 Mass. 859 (2001) (touching without threats or injuries insufficient for serious bodily harm element)
Commonwealth v. McCarthy, 385 Mass. 160 (1982) (standard for reviewing grand jury evidence for probable cause)
Commonwealth v. Moran, 453 Mass. 880 (2009) (viewing grand jury evidence in light most favorable to the Commonwealth)
Commonwealth v. Sherry, 386 Mass. 682 (1982) (context for implied-threat analysis in sexual offenses)
Commonwealth v. Chou, 433 Mass. 229 (2001) (cases where implied threat found require victim's reasonable fear of harm)