114 N.E.3d 74
Mass.2019Background
- Two defendants charged: Barnes (statutory rape, G. L. c. 265, § 23A) and Scione (use of incendiary device/I.E.D., G. L. c. 266, § 102A).
- Commonwealth sought pretrial detention under G. L. c. 276, § 58A (pretrial dangerousness statute) for both defendants.
- § 58A allows detention only where the charged offense is a predicate offense (enumerated, or meets the force, residual, or abuse clause) and dangerousness is shown by clear and convincing evidence.
- Barnes: alleged sexual intercourse with a 15‑year‑old when he was 43; question whether § 23A has force element or fits residual clause. Superior Court vacated detention; Commonwealth appealed.
- Scione: I.E.D. placed in victim’s driveway; trial court found facts supported treatment of § 102A as an offense “involving abuse” under the abuse clause and ordered detention; Scione sought relief and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 23A (statutory rape by age difference) qualifies as a predicate under the force clause of § 58A | Commonwealth: penetration of a child substitutes for physical force because a child cannot consent | Barnes: § 23A does not include use, attempted use or threatened use of physical force as an element | Held: No — § 23A lacks a force element and therefore does not qualify under the force clause |
| Whether § 23A qualifies under the residual clause of § 58A | Commonwealth: § 23A involves substantial risk of physical force, so it falls within residual clause | Barnes: residual clause applies; motion judge had ruled residual clause not vague | Held: Residual clause of § 58A is unconstitutionally vague under art. 12, so § 23A cannot qualify under it |
| Whether the abuse clause of § 58A must be applied categorically (elements only) or may consider underlying conduct | Scione: abuse clause requires categorical approach — § 102A does not have abuse as an element | Commonwealth: “involving abuse” permits looking at facts and circumstances to determine whether conduct fits c. 209A definition of abuse | Held: Non‑categorical approach allowed for the abuse clause; a court may examine surrounding circumstances |
| Whether Scione’s alleged § 102A conduct qualifies as ‘‘abuse’’ under c. 209A when examined on the facts | Commonwealth: placing an I.E.D. at victim’s driveway, prior stalking/dating history, and potential for serious harm show abuse by a household/former dating member | Scione: argued record insufficient to show family/household relationship or fear/attempt to cause serious harm | Held: On these facts, § 102A conduct qualified as abuse (family/former substantive dating relationship and I.E.D. placement created fear/attempt to cause serious harm); detention order affirmed |
Key Cases Cited
- Mendoza v. Commonwealth, 423 Mass. 771 (discussion of § 58A’s purpose)
- Commonwealth v. Young, 453 Mass. 707 (categorical approach to force and residual clauses)
- Commonwealth v. Blache, 450 Mass. 583 (force for rape may be satisfied by force necessary to accomplish penetration)
- Johnson v. United States, 135 S. Ct. 2551 (striking down ACCA residual clause as unconstitutionally vague)
- Sessions v. Dimaya, 138 S. Ct. 1204 (striking down similar residual clause in §16(b) as vague)
- Commonwealth v. Beal, 474 Mass. 341 (applying Johnson reasoning to Massachusetts statute)