*1
So ordered. Newspaper Company Globe vs. Court.
Suffolk. October 9, 1979. 1980. February Hennessey, Present: Kaplan, & C.J., Quirico, Wilkins, Liacos, Abrams, JJ. Law, trial, Constiutional Public Freedom of speech press, Vagueness Statute, Practice, Criminal, trial, of statute. Construction. Public Witness, Words, “Trial,” discretion. Rape. Victim. “Shall.” Judicial 278, 16A, Discussion of G. L. c. requiring general exclusion of the § public from the court room “at the trial” of certain kinds of criminal cases, and the common law practice open trials. [850-856] 16A, In G. L. c. the words “at the ambiguous per- trial” are § mitting resort to legislative history and other extrinsic aids inter- preting the statute. Quirico, J., dissenting. [857-861] 278, 16A, General Laws c. requiring the exclusion of general public cases, from the court room “at the trial” of certain kinds of criminal The word “shall” in G. L. c. relates to Quirico. J., dissenting. closure the trial 278, 16A, during is used in a mandatory, rather victim’s testimony. [861] directory
than a with respect sense to those portions of the trial during which the victim testifies. [862-863] Reporters for the news media are not persons may “such have a direct case,” interest in the excepted from exclusion at the trial certain kinds of criminal cases under G. L. c. 16A. [863-864] Under L. c. G. requiring general public exclusion of the
when the victim is testifying at the trial of certain kinds of criminal cases, the judge exercise his discretion to close other parts trial. [864-865] Guidelines for excluding the trial of certain kinds
of criminal cases during parts testify- the trial when the victim is not ing. [865] commenced Court Supreme Judicial
Civil action for the of Suffolk on 1979. county April Co. Braucher, The case was heard J. *2 for the M. with F. McHugh Berry him) (Janis
James plaintiff. Sikora, Jr., General
Mitchell Assistant Attorney (Alan J. General, for the de- Sherr, B. Assistant Attorney him) fendant. Dolan, Recorder, M. for the Greenfield ami-
Marguerite curiae, cus submitted a brief. C. for the Massachusetts Heigham, Newspaper
James Association, curiae, Publishers submitted a brief. amicus curiae, Gordon, Sr., se, E. amicus submitted a Ralph pro brief. 25, 1979, On Globe News- April plaintiff, J.
Liacos, of this paper Company (Globe), petitioned single justice court for relief to G. L. c. 3. extraordinary pursuant The 25, 1979, order of a trial petition challenged April Court, of defendant who acted under the au- judge 278, 16A, of G. L. c. to close a criminal trial to the thority had denied the Globe’s motion general public. judge intervene and had denied the Globe’s motion for a hearing and motion to revoke the order exclusion of the concerning Thus, the press. Globe from the tem- sought single justice order and porary restraining permanent injunction ordering members of the to attend the trial permit press and related On as the proceedings. April jury the criminal trial were being empanelled, single justice conducted a on the Globe’s and denied it hearing petition after his reasons for his decision. A stating orally judgment was entered on 1979.1 The Globe May Mass. appeals. R. A. P. 1 (b), (1974). of this the criminal trial
During
pendency
appeal,
Thus,
to its conclusion.
proceeded
issue raised before
moot,
is now
and the
from his
single justice
appeal
judg-
1 The opinion of the United States
Court in Gannett
Supreme
Co.
DePasquale,
ment dismissed. must troublesome, and are however, are “capable significant review.” Pac. Terminal Southern yet evading repetition 498, Co. v. De- ICC, 219 U.S. Gannett (1911). deem it 443 U.S. We appro- Pasquale, on our views the issues argued. therefore priate express Gen., 313 Mass. College Attorney Wellesley now we consider matters so doing, record, were not before but which put single justice. court is com- nor this neither single justice Although true, in the Globe’s petition to take pelled allegations the Com- of the circumstances that we do so light answer, R. Civ. P. 8 not file an (d), monwealth did *3 the facts the and that alleged peti- on or about shows that tion not The are disputed. petition of Norfolk 19, 1979, the Court the county April Superior motions in to with respect preliminary commenced hearings Albert vs. Aladjem, the case Commonwealth caused a 73102-9. The court Court, No. Norfolk County, door, room on the court to be marked “closed” placed sign turned away seeking entry.2 and court people personnel the counsel for on After entry April failing gain the mo- to file with thé court Globe on attempted April At the com- two motions. and the other tion to intervene ruled court, the before the judge mencement proceedings the Globe’s motions as being prop- not he would accept without argu- Without holding hearing er for filing. the trial be closed counsel, ordered that the ment of judge for the Counsel excluded. and the public press the order, and assistant to the closure defendant objected did not re- that the Commonwealth stated district attorney closure. quest annexed the before judge hearing
The transcript case in- It reveals that Aladjem petition. plaintiff’s they could press of the told members later some personnel Court did reporter one Apparently preliminary hearings. during enter re information enter, publish he told him that should judge but the hearing. ceived at the sixteen, seventeen at the sixteen and valved three girls, ages of for- time of trial. The indictments contained allegations The ruled that and forced unnatural rape. judge cible rape stated, He “This rul- 278, 16A, closure. G. L. c. requires from a statute and and Order results reading ing of an sex- of the Court that a child-victim alleged feeling entitled at least same ual attack is minimally protec- mat- child-defendant in a case sexual tion that a involving ters has.”
At before the hearing single justice, April Globe and the General assistant Attorney appeared. “ the de- [Wjhere district also and stated: attorney appeared constitutional, trial, fendant his to a is asserting consider the otherwise a trial that as outweighing interest, where Com- legitimate particularly victims, on monwealth on behalf of the and this is literally behalf of the victims the sense that were consulted they in this case. The Commonwealth fully by prosecutor waives whatever have to exclude the rights may press.” statement,
In a supplemental parties stipulated facts events after the In an concerning hearing. April 30 conference with the trial the assistant dis- April judge, trict that she had attorney spoken represented three in the court- victims about of the press presence *4 room; not the victims stated that would inclu- they object sion of the if the not to press press promised print any per- them, them, or to in- sonal data about photograph attempt 10, 1979, trial, terview them. On a the May following jury defendant was found not Aladjem guilty.
The Globe erred in argues single justice denying 16A, its that G. L. c. did not au- petition, claiming § thorize the to exclude the from the press Aladjem trial. not on This relies argument only statutory language and but also the that a statute should be purpose, principle construed to avoid constitutional doubts. We agree the order the entire trial was in error. The closing Globe several constitutional issues. The Globe also raises the First Amendment to the contends that Constitution Mass. 846 v, Co. United States and art. 16 of Declaration Rights the Constitution Massachusetts protect right of crimi- to be conduct press present during public L. c. In the Globe that G. nal trials. particular, argues 16A, is and was unconstitutionally overbroad applied § Also, Globe maintains that the trial court’s this case. on the closure issue violated the failure to hold a hearing of law. the Globe Globe’s to due process Finally, rights Amendment creates a in the that the Sixth pub- argues of these trials. We reach some only lic to attend criminal questions today.3 278, 16A, L.
1. The Globe that G. c. ambigu- argues § Before we can turn to these ous and is unconstitutional. G. L. c. we must construe constitutional arguments, See 16A, in asserted Bellotti ambiguity.4 light 622, 644 n.24 Baird, 443 U.S. Poulos New Hamp- (1979); 395, 402 the claimed shire, 345 U.S. considering con- we mindful of two are principles ambiguity, 3Indeed, deciding any could have refrained from issue single justice jurisdiction our under G. L. Ordinarily, on the merits. we will exercise Here it is remedy expressly provided.” “if no other declaratory might sought judgment the Globe have arguable that 278, 16A, that even press, exclusion of the does authorize G. L. c. does, Amendments to the United violates the First and Sixth if it the statute c. 231A. Rights. 16 of the Declaration of G. L. and art. States Constitution However, this matter in single hearing think the was correct justice we remedy of an alternative concerning practicality view of the doubts circumstances, issues raised significant public and in view of the Ottaway views for similar reasons. See News- We state our petition. Court, papers, Appeals Inc. “At the trial of a com reads as follows: General Laws c. incest, involving or other crime for carnal abuse rape, or indictment plaint sex, upon, with or years age person is the eighteen where minor under committed, or at the trial of been alleged crime is to have whom the against wedlock, child out of a woman with getting or indictment complaint child, ex justice shall presiding non-support illegitimate or for the of an room, admitting only persons such from the court clude the general *5 constitutionality of the to the in the case.” As may have a direct interest MacKenzie, 273, 11, v. statute, L. c. see Commonwealth “begetting” G. 273, 11, subsequently repeal c. was 368 613 General Laws (1975). Mass. 7. ed St. 379 851 Mass. 846
Globe “ First, or a struction. statute are phrases [w]ords their are to be ac- construed given ordinary meaning. They to their natural Burke cording import approved usage.” Newton, v. Police 374 452 (1978). Chief “ of in- itself is source language principal [T]he . . . into sight legislative purpose. [W]here of the statute is . . . plain language unambiguous, is not source of con- legislative history ordinarily proper Inc., Howmedica, struction.” v. 373 Mass. Hoffman However, (1977). un- language provision “[i]f clear, a court look to outside sources assistance the correct construction.” Rosenbloom determining Kokofsky, (1977).
We
three
consider
in G. L. c.
possible ambiguities
First,
16A.
to what
or
of a
parts
judicial proceeding
locution,
does the
“At the trial
. . . the
justice
presiding
shall
exclude
public,”
Second,
refer?
is the
general
word, “shall” used in
or
sense?
mandatory
directory
Third, are members of
“a direct in
press “persons”
terest” in the case?
The
two
latter
urges
statute,
mark
questions
and it is at least
ambiguities
clear that the
“a direct
has
interest”
con
language
required
struction in the
Marshall,
past. Commonwealth
Mass. 432
Blondin,
Commonwealth v.
cert. denied,
neither has our party recognized ambiguity underlying first we take time to question, here. explicate “trial” word is itself ambiguous. determining statute, of a word in a we look to meaning its lex- ordinary ical Burke v. Newton, meaning. Police supra. Chief of ‘ “Rather than in their sense, terms law using everyday [t]he uses familiar their familiar legal sense.’” expressions legal States, United Bradley U.S. (1973) (citation “trial,” In its omitted). definition of Webster’s New legal International ed. Dictionary (2d 1959) suggests the term has several senses: “In a sense includes trial all from the time when proceedings issue is more joined, when the usually court, are called their parties case in try
852 379 846 Mass.
Globe Court. Newspaper determination; to the time of its final in criminal law the is, however, term trial restricted generally proceedings in the This of mean subsequent swearing jury.” range 4th also Black’s Law ings appears Dictionary (rev. ed. the dictionaries’ that “crimi 1968). Despite suggestion nal trial” should be defined our older cases restrictively, “trial” “the have endorsed a definition of examination tribunal, to the before a laws competent according cause, for the land, of the facts issue put purpose v. such issue.” Soderquest, Commonwealth determining other Mass. overruled on (1903), grounds, Penrose, Commonwealth Fact- the lexical definition.
This definition is broader than occur the are before may empanelled. finding hearings jury A cause to to determine whether there is probable hearing an It not clear bind a defendant over for trial is is example. on a would constitute whether motion hearing suppress Cf. ... in a cause.” “examination facts issue put is not supra Commonwealth Soderquest, (arraignment then, definition, the distinc to our cases’ trial). According But com is not tion between “trial” plain. “pretrial” 13, 14, R. P. Mass. Crim. pare 888, 889 R. P. with Mass. Crim. Su of the United States recent members among disagreement ato motion to sup Court concerning preme applicability Amendment, “trial,” in the Sixth of the word press appearing See Gannett that the distinction is blurred. further evidence Indeed, it is clear Co. v. DePasquale, supra. events after all encompasses occurring “trial” necessarily conference, a For bar are side example, jury empanelled. held in the a voir dire hearing or hearing legal arguments, of evidence admissibility to determine absence of jury Thus, has no definition. “trial” not meet the may Soderquest irresistible single, interpretation. “trial” an if we has unambiguous
Even assume sentence, trial . . . the jus- “At the presiding meaning, still ambiguous. tice shall exclude public,” “At” mean “through- may “At the trial” is ambiguous, Mass. 846 Co. out,” also some time but mean “at in” “during Thus, order, of.” “At the trial parts legislative pre- shall would not siding justice charge jury,” imply should continue the entire trial. On throughout charge *7 hand, the other “At the trial the shall main- presiding justice order in tain the court room” would The apply throughout. of of the sentence varies with the nature the act meaning which the is ordered acts, to do. Certain such as a occur once and a Others, within limited time. jury charge, order, acts, such are continuous. And some maintaining such as can occur at excluding public, logically of the trial. Thus, even if “trial” many stages has definite neither the signification, words of statute alone nor the nature of the act 278, commanded settles whether G. L. c. or wholesale closure. requires partial
2. In order to resolve the L. 278, in G. ambiguities 16A, we must first consider whether of stat- any principles utory construction should our At influence least analysis. such two exert It this case. is well- principles pressure established construed, that a “statute must be if fairly possi- ble, so as to avoid not the conclusion that it unconsti- tutional but also grave doubts United that score.” upon States v. 394, 241 U.S. 401 Fuey Moy, Jin (Holmes, (1916) Accord, Commonwealth v. J.). 5, 374 15 King, Mass. ; Commonwealth, v. Alegata (1977) 287, 353 Mass. (1967); Worcester Nat'l Bank v. Commissioner County
Banks, v. Commis (1960); Ferguson Taxation, sioner & Corps. Mass. 323-324 (1944). It is also well settled that a statute com derogation mon law construed, should so as the con strictly long struction is consistent with the See statutory purpose. Co., Coca Cola v. Hayon Mass. Bottling ; Bondesson, Vallin v. (1978) 753 (1964); Dickinson, Houghton v.
(a) Globe raises several about the constitu- questions tionality from criminal trial. excluding press face of those and the United arguments States Supreme Court’s issues, uncertain on the Richmond see posture cxxix, Inc. 220 Va. decided July
Newspapers, Virginia, 1979, which has been before recently Supreme argued Co. Gannett Court on we DePasquale, supra, appeal; seek shrink constitutional doubts possible region Nevertheless, 16A. about G. L. c. number rea- sons our those We counsel against deciding questions today. that, even take care to out if we chose to decide the point here wheth- constitutional questions presented, question er the State’s interests a defendant’s Sixth Amend- outweigh us; ment to a trial would in no be before way Furthermore, not before this court. in- defendant First and stead of the moot issues Globe’s deciding Sixth Amendment we await United States Su- rights, Inc. Richmond Newspapers, Court’s decision preme Nor do we reach the Virginia, supra. question press *8 the State The Globe’s defendant under Constitution. rights 16 not contentions on art. were relying argued adequately R. A. 16 amended brief. Mass. P. plaintiff’s (a) Indeed, the Globe’s brief relegates (1975). con- Commonwealth to one cursory, Constitution this Court, footnote. See Beaton 385, v. 367 Mass. Land clusory 423 for State con- dismissed, U.S. 806 As appeal (1975). to those available stitutional rights analogous arguably silent, Amendment, under Globe’s brief is the Sixth unclear, about the trial. our Constitution to reach the we decline constitutional questions Finally, ‘not a constitu- because court will ordinarily pass upon “[a] record, tional although properly presented by question which if there also some other present ground upon Thus, . if a can be de- case ... case disposed on either of one a constitu- cided two grounds, involving construc- tional other a question question, law, the latter.’” the Court will decide only tion Fazio, See Common- Fazio 375 Mass. 405 (1978). We can v. Gustafsson, wealth (1976). on decide the case nonconstitutional grounds. present Also, our second Therefore, do so. because principle we — of the common that statutes construction derogation — law should be construed for construction strictly argues our result minimizes constitutional favoring publicity, about 16A. we do doubts G. L. c. Although reach the raised we constitutional squarely questions today, we believe that the construction us principles adopt bring to a conclusion which the results approximates urged upon us turn Globe on constitutional We to con- grounds.5 sideration of the L. c. between G. relationship and the common law. Public been the trials have rule at common law since
(b) Saxons conducted their trials an “like Anglo ill-managed Pollock, F. of the Com- public meeting.” Expansion Oliver, mon Law 30 In re 333 U.S. (1904).
See Gannett Co. U.S. generally DePasquale, n.15 Id. at 418-427 Al- (Blackmun, J., dissenting). in 1884 Mr. Holmes’ though famous dicta stated Justice rule, some of the reasons for Cowley Pulsifer, 392, 394 this established im- so (1884),6 long precept, bedded in our no until 1949. practice, required explication Blondin, In 569-570, Commonwealth v. 324 Mass. at while 278, 16A, G. L. c. sustaining attack, a due against process we noted “the courts, universal of our practice especially cases, criminal the doors as otherwise keep open, except statute.” provided by
Public trials use courts as protect against systematic instruments of political re religious persecution. *9 Oliver, at 268-270. supra abuses of a Publicity prevents Id. at 1 Bentham, 270-271. See single judge’s power. J.
Rationale of Evidence 524 Mill ed. (J.S. 1827). Judicial of deter pressure public scrutiny witness Com- may perjury; approximate This the parellelism extends not substantive doc trine, but also to procedural safeguards. See part infra. 6“It is desirable place that the trial of causes should take under the eye, public not because the controversies of one citizen with another are of concern, public but because it is of the highest moment those who ad justice minister should act under always responsibility, the sense of public and that every citizen should be able to own satisfy eyes himself his as to the mode in public duty performed.” which a Bohmer, 380 n.14
monwealth
and
confidence
court officials.
Gannett Co. v.
may engender
443 U.S.
dis
DePasquale,
(1979) (Blackmun, J.,
induce
of the
trials
also
members
public
senting). Open
to come forward with new
or other evidence.
testimony
Bohmer,
at 380
bene
n. 14. Other
Commonwealth
supra
more
of
fits óf
are
abstract. As the audience
the
publicity
to do
courts’
the
learns how courts
struggle
justice,
public
At
work and
how courts can
the
may suggest
improve.
time,
the
of
same
the
drama
experiences
justice being
theater,
done.
drama
the audience
"Like
teaches
judicial
—
not to make" the
mistakes
it deters criminal
participants’
—
—
misconduct
and
a catharsis
a sense that
permits
Thus, the
law
been
common
prac
have
wrongs
righted.7
of
of
tice
criminal
trials
justice
open
improves
quality
done in
courts and binds the courts more
closely
was en
serve. General Laws
society they
tradition,
acted
of the common law
background
against
Blondin,
and that
we said in Commonwealth
why
of
“It is to be
construed in favor
571:
strictly
supra
of
general principle
publicity.”
“7
[B]y
temple
adds to its
functions
of
publicity,
justice
of
other
order,
the most
branches
highest
important
school: a school of the
where
á
theatre,
morality
impressive
are enforced
the most
means:
interesting
to more
ex
sports
imagination give place
Which the
of curiosi
motive
self-regarding
Teal life. Sent thither
hibitions
it,
imbibe,
it,
without
aware
intending
being
men
without
and
ty,
influenced,
less, by
tutelary
more or
social
disposition to be
motive,
their
without ef
parts,
Without effort on
own
justice.
love of
they
part
respective governments,
merit on the
of their
fort and without
(for the
they
permitted
what
are
to learn
learn the chief
little
more
than
impossibility is still
irresistible
obligation
physical'
depends.”
on which their fate
of the state of the laws
legal prohibition),
Note,
Bentham,
Trial
and the First
Secrecy
at 525. See
supra
1 J.
91 Harv. L.
Proceedings,
Amendment
of Public Accessto
Right
Judicial
Note, The
to Attend Crimi
Right
See also
Rev.
purpose
On
L. Rev.
Hearings,
nal
78 Colum.
citizenry,
in the
responsibility
moral
legal
the criminal law to foster
Law,
Contemp.
&
Hart,
23 Law
The Aims of the Criminal
generally
see
*10
401 (1958).
Prob.
846
857
v,
Co.
3.
power
principles
favoring
Recognizing
we must
interests that over-
publicity,
identify
precise
L.
matched the common law rule and
G.
thereby justified
278,
Blondin,
In
c.
in the
eyes.8
Legislature’s
supra
571,
we considered the
Legislature’s purpose
enacting
278,
G. L. c.
16A. “Doubtless it was
that female
thought
forward,
witnesses
could come
institute com
particular
reluctance,
with less
so that more
testify
plaints,
justice
if
would be
could be relieved from the
accomplished
they
inhibitions
of a
imposed by
presence
curiosity impelled
correct,
audience.”
this formulation is
Although
generally
does
matter
put
strongly enough.
251,
enacted in St.
c.
with the
“An
title
Originally
Act to
witnesses under the
of seventeen at trials
protect
age
crimes,”
for certain
the statute was
“for the
designed
pro-
tection of minors from the
and obscene and from
vulgar
House Doc. No. 1349.
degradation.”
St.
the statute was revised as
of a com-
reexamination of the treatment of
prehensive
children
Commonwealth.
1931 House Doc.
1200.
No.
The Special
Commission Established to
the Laws Relative to
Investigate
Children,
Dependent,
and Chil-
Delinquent
Neglected
dren Otherwise
Care stated the
Requiring Special
“To
purpose:
embarrassment,
spare girls
juvenile age
humiliation and demoralization of
to all the sor-
testifying
incest,
did details of
carnal
rape,
abuse
other crime in-
statute,
law,
8“If the
because it modifies the common
strictly
construed, yet
advance,
the construction adopted should
rather
than
defeat,
purpose
Dickinson,
of the Legislature.” Houghton v.
course,
Mass.
The Legislature,
power
has
to create ex
law,
ceptions to the rules of common
New
Times
Standard
Bedford
Bristol,
Publishing
v. Clerk
Co.
the Third Dist.
Court
Mass.
410-411 (1979), and the
provided
common law itself
exceptions
rule
publicity.
Blondin,
See
Commonwealth
Mass.
denied,
Thus,
cert.
Globe Court. Newspaper sex, incidental trial with examination and valving open Id. at 90. cross-examination.” 278, 16A, This reveals that G. L. c. legislative history § of stands at the nexus two strands of overlapping policy; wished to shield certain victims of sex crimes Legislature from the difficult of in and the experience testifying public;9 broad, this solicitude for victims with the Legislature joined afforded children The paternal generally.10 rape protection It victim’s ordeal court has been well documented.11 278, enacted, G. L. c. has Since was Commonwealth § in other L. sensitivity rape plight ways. demonstrated for victim’s G. 41, services); c. 97B victim and (rape reporting, prosecuting counseling § 41, (reports rape attempted G. L. c. 97D of sexual assault must be § admissibility 21B of evidence kept confidential); (limiting G. L. § history reputation). of victim’s sexual See also Commonwealth Gibbons, 766, 768-769, 378 Mass. 774 & n.ll of are Many designed protect identity statutes are minors who L. c. 60A Court rec subjects litigation. e.g., (Juvenile See G. open public inspection); (excluding public ords not G. L. c. 65§ 119, 60 sessions). (limiting Court See also G. L. c. uses Juvenile held unconstitutional Common delinquency adjudication) Ferrara, (records G. L. c. 5C (1975); wealth v. G. L. c. 100B adoption proceedings segregated); (juvenile must be years three from final en may and court records be sealed after probation try). Generally, purpose prevent stigmatization these statutes is encourage generally and to rehabilitation. See Police Comm’r minors Dist., 651- Municipal Court the Dorchester of Boston v. defendant, juvenile compulsion In the case of a 666-668 of the innocent victim of a sexual purposes strong. of those the case assault, her indeed. aggravate injuries very strong not to obligation Gates, Back, Bode, (1978); Brodyaga, ch. 7 L. M. 11 E.g., Fighting J. White, A Rape Report & R. and its Victims: Singer, S. Citizens, M. Tucker Facilities, (1975) cc. 8-9 Agencies, Health and Criminal Justice Hilberman, Victim, 2, 7, 8 cc. Report); Rape LEAA E. (hereinafter Rape, (1978); cc. 6-8 Burgess, L. Holmstrom & A. The Victim (1976); Victim, 12, 14, Mazur, cc. Understanding Rape S. Katz & M. Bohmer, MacDonald, Atti C. (1979); Rape, (1971); Judicial J. 1977); eds. R. Geis & G. Geis Rape (D. Chappell, tudes Toward Victims Laszlo, is a Child: The Victim A. & A. When the Prosecutrix Burgess Assault, Society Viano (E. of Sexual in Victims and Consultant Cases Libai, Victim of a Sexual Offense 1976); ed. The Protection of the Child O’Neale, (1969); L. Rev. 977 System, Wayne in the Criminal Justice Mass. 846 Co. “ been said court for the vic- has experience, rape [t]he tim, as the as much of a crisis precipitates psychological fact, that she has been itself.”12 In victim feel rape may the crimi- twice: once the defendant and once raped humilia- nal ustice A victim who rape anticipates j system.13 come forward at tion embarrassment choose not to may or, all, forward, if she abandon her comes participa- *12 the case.14 Even if she continues to tion midway through become in the criminal she so dis- process, may participate tressed she cannot testify effectively.
This is for the child of true victim especially rape. delicate has few child’s resources to withstand help psyche “ Furthermore, trauma of sexual is assault. general- [i]t child ly agreed by psychiatrists degree psychic much, more, trauma is as or on the perhaps dependent way child victim treated after than is at the discovery time of the offense itself.”15 Even an victim adult con- fronted with the criminal justice system typically “fright- ened, confused, and reticent.”16 For with a child barest and of a understanding purposes procedures trial, the act of evidence be difficult giving may particularly and bewildering.17
One the most of the trial for disturbing aspects many victims is The victim is often embar- testifying public.18 Court Ordered Psychiatric Examination a Rape Victim in a Criminal — Rape Prosecution Many Or How Times be Raped, Must a Woman Santa Clara L. Rev. 119 (1978).
12 L. Burgess, supra Holmstrom & A. 229. note at Bode, Back, c. 7 Fighting (1978). L. Holmstrom & A. Burgess, 13 J. supra note at 235-236. Mazur, 14 S. Katz & M. Understanding Rape Victim 197-198 15 Libai, Hilberman, supra note at 980-981. See E. The Rape Vic tim 53 Report LEAA at 105. Laszlo, 11; Bohmer, See A. Burgess supra & A. supra at note C. note MacDonald, at Rape 166-168. 128 (1971). J. 227; Libai, L. Holmstrom & A. Burgess, supra supra note at note 979. matters before a
rassed to discuss intimate and painful The victim also fear that she will group strangers. A be held ridicule. researcher described has up child victims: child is experience typical likely “[A] either confused by presence frightened this unusual many opportunity persons, impressed audience with his stories. both enthralling large cases serve to interfere with public’s presence may addition, of recollection and narration. powers Ip child’s ‘the victim wishes have observed that naturally psychiatrists which to avoid the embarrassment accompanies publicity, authorities, or courtroom Chil- experiences. questioning dren are often this disturbed profoundly particular com- Recognizing problem, judges situation.’”19 have considered clearance of the dur- courtroom ipentatqrs the victim’s testimony.20 ing tq of G. L. c. purpose encourage Thus* qf forward; to come once victims sexual offenses they
young *13 forward, to come the statute is their designed preserve have them undue ability testify by protecting psychologi- Leo, ante 34, 38 Commonwealth harm at trial. See cal terms, In broader beyond statute’s purposes go the Státe’s inter- to encompass juvenile privacy protection im- est in sound and administration justice; orderly ipost for the obtain convictions portant, helps just statute victims had suffered at of crimes from which the often types asssail- the hands of the criminal while their system, justice Hilberman, Libai, E. omitted). See supra (footnote note at 11, 199-200, 11, 53; Mazur, at supfa supra note at S. Katz & M. note 233-236. 20 Bohmer, 11, England 167. LEAA c. VIII. supra Report, C. note at when a child general public and Israel to exclude give power courts Sweden, Israel, that a court of provide victim and Denmark testifies. and defense. prosecution for the question privately ficial should the child Bohmer, 11, 986-1001; Libai, supra at 167. C. generally supra See note So, too, the American States have excluded large number of victim, statute. See decision or protect by judicial the child either n.19, listing for a partial Gannett 443 U.S. at DePasquale, Co. authority. American
ants had often free. now We construe statute in gone of these light purposes.
4. The first that we must decide is whether the question “At the trial. . . the shall exclude language presiding justice relates of the en- necessarily general public” closure tire trial. We have shown the to be question language and our does not illuminate the ambiguous, precedent tends to point. legislative history, though equivocal, favor a that the statute does not mandate closure of reading trial. the 1931 whole Commission Re- Although Special of a it does not port speaks “private exclude the hearing,” that the possibility More- hearing private only part. over, the of G. L. c. Report 16A, purpose states as, embarrassment, hu- spare girls juvenile age “[t]o miliation and demoralization of . . . incidental testifying trial” open House Doc. No. (emphasis supplied).
at 90. In of the light we con- principles favoring publicity, strue the statute to relate to closure of the trial only during victim’s testimony.21 16C, The language bf G. L. c. inserted St. more clearly states may closure order be for the entire trial or “during portions those of such trial when testimony present is to be direct ed.” We think this 1978 phrasing to be inconsistent with the view we analogous earlier statute (§ 16A). The take Commonwealth im plies that G. L. c. mandates the entire closing trial. The goes Leo, Commonwealth on to imply that in ante Commonwealth we held that mandatorily 16A right extends the to a closed trial to the child victim and to her alone. The Commonwealth concludes the child make an intelligent and voluntary waiver of her partial to full or closure. Accordingly, trial should hold a hearing on the waiver issue. *14 argument This our holding misconceives in We did not say Leo. the victim is the only person who possesses right to a closed trial. We said that the purpose main of the statute apparently was to protect the Therefore, Commonwealth’s case its protecting witnesses. Id. at 38. it was clear that the statute did not a defendant give to a hearing from press which the was excluded. The Commonwealth’s suggestion place would also the trial court in the awkward position of to rule on a having putative child’s waiver of im- an portant right, Use a waiver in this context would entail diffi- doctrine relatively factual determinations and procedures cult cumbersome (ap- pointment of counsel in guardian). some cases a It would place and a 846
Globe next consider 16A, We whether G. L. c. requires closure of the trial the victim’s testimony. during that the in used word “shall” argues Legislature L. c. rather G. a than a manda- directory, sense. That is incorrect. word ‘shall’ tory, Although “[t]he used in ... is not of as statutes inflexible and signification is or construed as infrequently permissive directory a order effectuate legislative purpose,” Registrars Swift Voters Mass. see (1932); Quincy, Myers Commonwealth, word (1973), “[t]he ‘shall’ ... a word of commonly imperative obligation Dist., . . .” . v. District the N. Attorney Johnson “The rule direc- general whereby tions to officers for the or protection public private are be in a like manner to di- rights mandatory may applied Sands, Con- rections to courts.” C. Sutherland Statutory Thus, 57.16, at 439 ed. the manda- struction (4th 1973). construction statute tory appears preferable. Treating its If she were uncer- would frustrate purposes. directory she would have to a tain whether testify public, young choose not to with the woman cooperate police might deterred from for- She coming prosecutor. might ward at all. determi-
Furthermore, is relevant a legislative history nation whether a statute is mandatory directory, of the General Court deliberate refusal adopt “[t]he would have conferred discretionary word which plainly of one whose natural . . . [may], place purport power of a settled in- [shall], them . . . would compel significant tention to use the word.” Rea Aldermen imperative of in Here the Everett, 217 Mass. Legislature bill, Doc. No. 1923 House 1923 sent Governor exclude the public.” that “the court shall stating the bill with amendments including The Governor returned mes- an accompanying “shall” “may.” change import also more a mature child. It could heavy responsibility on even experience and make the victim’s uncertainty process testifying into the more taxing. still *15 Mass. 846
Globe Newspaper said, “A statute presiding giving the Governor sage, . . . to be ought the public to exclude the discretion 1349. The version Doc. No. 1923 House . . . .” sufficient It to have been a compromise. enacted appears eventually trial is be- shall, if said “the justice presiding provided court, ex- court, if before superior or may, fore a district 1923, c. 251. When . . .” St. . clude the public general 1931, it stated: reviewed the statute Commission Special of the is opinion Commission very strongly “The cases, such now mandatory for a hearing reasons private in the courts, are in the district equally compelling the above sec- recommends that Court, the Commission whether so that the justice, tion 16A be amended presiding Court, shall exclude the or District in the Superior as room, such persons from the court admitting only public House Doc. in the case.” 1931 have a direct interest may the commission’s 90. The followed No. at Legislature room leaves little This history recommendation. legislative 16A, c. the word “shall” in G. L. for doubt that to the victim’s as testimony.22 mandatory not be excluded under The Globe contends that it should as it is “such persons G. L. c. because among Blondin, a direct interest in case.” supra have may construction for liberal 571, the Globe we provided argues, clause, “The intent was distinguish of the and we said: reason for being pres between having legitimate persons are often attracted large mere idle who ent and spectators issues, not sex trials involving numbers sensational to the but sometimes degra community detriment have the Globe’s itself.” Because reporters dation justice L. c. 16B G. supported by language This view is further where, in the proceedings to criminal 302), c. by St. (inserted stated, wife, presiding husband and involving district court “[t]he the trial.” during . . . general public . . . exclude justice rape 316), deals by St. (inserted Laws c. 16C General spec exclude “all “may” a trial judge provides or incest trials and his the defendant waives and where request parties on tators” the difference clearly knows writing. Legislature to a trial “shall.” mandatory “may” and permissive between
Globe
Court.
Newspaper
trial,
a
reason to
attend
a
unrelated
legitimate
reason
to
the Globe
voyeurism,
have a “direct interest.”
they
argues
We have never said that the “direct interest” clause en
Blondin,
572,
and in
at
we ex
supra
compasses
press,
reserved the
We
have stated
dictum
pressly
question.
that the statute does not
exclusion of
defendant’s
require
husband, wife,
Common
In
parent,
friend.
guardian
Marshall,
wealth
5. In that G. L. c. holding mandatory only we do the victim’s not rule out the testimony, possibil- that the trial close other of the ity parts trial. might of the decision close trial other than the vic- any part tim’s or to the entire matter within testimony close trial is a sound discretion. See Newspapers, Ottaway judge’s Court, Inc. v. Mass. Because Appeals context of discretion in the a criminal trial is well judge’s settled, we take this to provide general guide- opportunity 550-552; lines for the exercise of that discretion. See id. v. District Dukes Court Kennedy County, 16A, As we G. L. c. and the understand trials, should common law to closure a judge relating an hold a before order hearing entering closing parts trial other than the we have victim’s testimony. Although interest, this not ruled that the constitutional has plaintiff Co. v. Superior that a with the constitutional requirement view consistent before deprivation suffering receive hearing party U.S. See Co. DePasquale, such an interest. Gannett 445-446 id. at concurring); (Powell, J., (1979) because of take this We position J., dissenting). (Blackmun, interest view of the society’s our significance expressed trials. the Com- which G. L. c. a case in applies, the trial other move closure of monwealth parts closure of the entire trial. than or for the victim’s testimony *17 nec- closure is The at the be whether such issue shall hearing i.e., the to evi- to preserve serve essary statutory purpose; for a For if conviction. just example, closing dence required the avail- of the trial to assure all were necessary part see, of evidence fresh Common- ability complaint, e.g., Leach & W.B. wealth Gangi, (1923); Liacos, ed. the Evidence 1967), (4th Massachusetts P.J. judge The Com-
would be in closure. justified ordering monwealth should bear the burden necessity. showing Furthermore, because of the an policy favoring publicity, between the defense close agreement prosecution the trial should not closure nor even be relevant justify determination of necessity. judge’s
At to be from the excluded trial hearing, any person should an to state his have opportunity objections motion to inter- order.23 The need not file formal person vene. of the clo- The need not receive notice prior hand, sure On the other the court should hear hearing. informs the court of his timely who fashion person desire should object. completed expeditiously hearing and should not involve lengthy legal argument. ordinarily Qn find- should make conclusion judge hearing, rule on the of fact as and should ings necessity appropriate for closure.24 Marshall, Blondín, supra, not supra, As we held in with a “direct interest the case.” persons
exclude certain law, or make an error of Although judge might abuse his discretion on if raised on grounds such an error would warrant reversal
Since before moot, us involves an issue now appeal is to be dismissed.
So ordered. General Laws c. (dissenting). J. Quirico, as follows: “At provides pertinent part the trial of a com- incest, or indictment plaint carnal abuse or other rape, sex, crime where a minor under involving years eighteen is the with or whom the age person against crime upon, to have been committed . . . the alleged presiding justice shall exclude room, from the court ad- general public such have a direct interest mitting persons may It case.” the criminal trial undisputed which of the Boston Globe were employees excluded was one in which the defendant was tried on indictments charg- being him crimes ing forcible and forced unnatural rape on victims who were under rape eighteen years age. of its court holds that word opinion, “trial,” as used in the the trial” at the phrase begin- “[a]t *18 16A, of The court then discusses sev- ning ambiguous. § eral of to construction as am- principles statutory relating and the those by of biguous language application principles to 16A concludes that when used the Legislature § word “trial” it intended it to mean that the trial only part which the minor victim testifies. during below, For the am to reasons stated I unable with agree 16A, that and I therefore interpretation respectfully § dissent from that opinion regard.
It is clear from the court’s that its conclusion that opinion 16A not “is the victim’s mandatory testimony” § based on the statute is unconstitutional. any holding Leo, 37-38, ante appeal Cf. Commonwealth defendant. 16A, c. (1979) (G. rights defendant). L. does not create in a If § closure, defendant raise a constitutional hearing objection should the extent to a public should consider of his constitutional trial. Mass. 846 the constitu- not reach it does states court The expressly limits itself court The raised plaintiff. issues tional assumedly ambig- of an construction of the process to in- aids to several it resorts For that purpose uous statute. 16A, as history the legislative § terpretation, particularly 1931, and var- amended in 1923 and enacted originally other publica- in law journals ious articles appearing of the ordeal 1978 on the subject 1969 and tions between of the court’s opin- note in court. See supra, victims rape of statu- to a consideration limit this dissent I likewise ion. issues. constitutional do not reach construction, and any tory trial,” as used that the words 1. I do not believe “[a]t I believe that are ambiguous. at the beginning sense, that as and ordinary in their usual are used they starting all of the trial such include proceedings they the re- and continuing through empanelling jury There be some excep- the verdict or finding. turn of in the absence of dire held thereto, voir hearings tions e.g., evidence, it is but the admissibility to determine jury to identify of this case not purposes necessary I not event do any define such exceptions precisely. its usual and ordinary the clear believe that language, given of a distinction between meaning, permits drawing victim of a sex which a of the trial during youthful of the trial which crime testifies and the remainder during other witnesses are any testifying. used in 16A state which the Legislature language intention to exclusion
its require crimes with sex against “at the trial” of charged persons In G. L. c. to that statute. victims is unique young man- 646, 1, the St. Legislature inserted by “ involving a certain type dated that hearings [a]ll [of *19 A . . .” . be closed to the public shall general juveniles] 119, 65, to the effect c. is found in G. L. similar provision § the from the public court shall exclude general that “the mat- on certain are held juvenile in which room” hearings 6, as amended through c. General Laws ters. § of if, at the any par- request c. St. provides ty, probate judge adoption hearing a determines an probate judge chambers, shall held in be “the shall exclude general public hearing.” Similarly, from the G. L. by provides 278, 16B, c. § inserted St. c. that a judge “may public general Court District exclude from during any proceeding the court room of the trial criminal involving sugges- husband and wife.” I of or know no claim permit tion that these statutes should be to construed parts ap- they of closure certain trials which ply; application I no of and know of instances of a such by trial a limitation our courts as matter of con- struction. significant wjien Legislature
It is to note that did in persons por tend to authorize the exclusionof from limited general language a trial it tions of did use the contained above, in 16A and other statutes cited but rather it chose § expressly language authorizing pre an exclusion limited to portions eloquently trial. of a This is demonstrated scribed by 278, 16C, c. G. L. inserted St. which § provides part; protect parties “To involved a trial arising complaint rape, or from indictment for incest or spectators the trial exclude all from the court being held, room in which such trial is of from said court during portions room of such trial when direct those testi mony presented,” provided tois certain consents parties are first obtained. opinion, comparison my 16A other stat- requires Legisla- discussed above a conclusion that the
utes capable using drafting language when ture statutes clearly expresses which its intent exclude spectators generally distinguished or from trials as parts trials, and that it demonstrated this in its language sharp choice of the 16Ain contrast comparison sup- A 16C. those two sections leaves no ambiguous port 16A§ for claim that as to what is meant by the “at trial.” words ambiguous, language I If, believe,
2. 16Ais not legislative then there is no need occasion resort to *20 379 Mass. Co. v. Court.
Globe Newspaper to examine of the statute. While permissible history “[i]t to the of a incident passage of records legislative proceedings its mean its doubtful ... plain to illumine language statute v. . . . .” Plunkett Old Col be affected cannot thereby ing Co., 471, 474 Old South Ass’n 233 Mass. (1919). Trust ony “The Boston, 299, 304-305 plain resort to of a cannot be affected by pro statute meaning be to its incident Light may sought ceedings passage. of to doubtful illumine statutory language source only
that
than that afforded
the words
by
Other information
import.
to
in the
of the
be examined
aid
solution
statute can
the words
the stat
an
can only interpret
We
ambiguity.
to the
intention of
ute: we cannot
as
probable
speculate
from those words.” Allen
Commis
apart
Legislature
Taxation,
&
sioner
Corps.
Fairhaven,
The case D.N.
& Son Selectmen
Kelley
Since is my stated that the opinion, already of and “at the trial” language words particularly therein, as used are not I believe that under the ambiguous, above, doctrine in the cases discussed developed nothing can from the legislative history justify departure plain of these words. meaning
In its the court to seems that the opinion emphasize Spe- cial Commission which recommended the amendment of 16A in the manner later St. enacted as said in its House Doc. No. report the statu- (1931 90) was: “To of the embar- tory purpose spare girls juvenile age rassment, humiliation and of to demoralization all testifying incest, the sordid details of carnal abuse or other rape, sex, crime to incidental trial with examina- involving open tion and cross-examination.” At the risk of it is repetition, view that such and reliance on the my emphasis report would be if we were with statu- ambiguous proper dealing which I do not believe be the case. The tory language, chose which was broader Legislature apparently language than which would have been to accomplish necessary the more limited cir- Commission. these objective cumstances the intention of the Commission cannot Special broader, over the clear albeit lan- prevail unequivocal, used 16A. guage by Legislature where, 3. If this were a of stat- case reason by ambiguous we were to resort to extrinsic aids utory language, permitted for the of that I would prefer interpretation language, Bristol, resort to the aid sanctioned in Burrage County of case involved the That question a statute authorized “the whether which and costs” expenses disbarment meant that sums were such proceedings “as criminal Id. at 300. This court paid prosecutions.” said, “It for id. at 301: that the has been is agreed practice Mass. 846 Go. t>.
Globe Newspaper
for
services
counties
pay
professional
many years
Where
disbarment proceedings.
rendered
prosecuting
contem-
of a statute is of doubtful import,
the language
officers
thereby
construction put upon
poraneous
evi-
duties is strong
with performance
charged
understanding
application
dence
its meaning.
of different meanings,
words
susceptible
and sanctioned
acquies-
practice,
through years
intention
is significant
cence
the Legislature,
were
originally.”1
which they
employed
Court,
has extrinsic construction as an charged with the enforce by agency an administrative period years statute, case, Burrage citing of the sometimes ment administration Inc., See, e.g., Cleary of that v. Cardullo’s supra, practice. in support Comm’rs, 280 Mass. (1964); 347 Mass. Mullen v. Sewer Taxation, & Corps. v. Commissioner (1932); Allen Commonwealth, 245 Mass. States Trust Co. (1930); United Gen., v. Treasurer & Receiver (1923); Tyler Co. Superior
If we were resort to extrinsic for the aids interpretation of G. c.L. on the that its assumption language § I believe that the aid illustrated in the Bur- ambiguous, cases, and Swan rage would the conclusion supra, support 16A is to be as is done in interpreted narrowly this in court’s case. The court holds to- opinion present that, since 16A became day mandatory reason by ” the amendment2 word “shall substituting mandatory for the I word believe it is for us to directory “may.” proper take notice the fact that almost all Court judicial who have had occasion statute since judges apply on the that it have basis proceeded closure required the entire trial. I know of no instance which a who made more limited of 16A did so on the basis application to it this this court. interpretation day given
I believe that it also to take notice proper (a) several there has been an years increase past aggressive, concerted, action perhaps press claiming constitutional to be which trials are present subject 16A; Court, some (b) judges few, but have either to or to accom- very yielded attempted modate that under pressure by press admitting special conditions, Commonwealth or restraints. See guidelines *23 Leo, 34, 36-38, ante Whatever the motivation reason for this the from universal previous appli- departure trial, cation of 16A to the there entire is no indication that § it was due that the had intended any concept Legislature the closure to be limited to the time when the vic- youthful Indeed, in the Leo tim testified. the as departure applied case, form the did not take the closure supra, particu- lar of the trial. If the due to constitu- was departure considerations, tional it does not detract from the signifi- cance of the for almost the fact that the years fifty judges Court treated 16A as the entire have applying § fact, conclusive, trial. That while not is in my opinion per- 1931, c. 2 St. 205. Court.
Globe Newspaper now this court places the limitation which suasive against on the statute. constitutional not the court does decide the Although
4. the is a factor in their the presence raised plaintiff, issues by 16A. court The expressly which it on places limitation § there- that in view these and says the issues notes presence uncertain Court’s United States of, Supreme and of “the the Richmond Newspapers, issues, on the [citing posture we shrink Inc., and the Gannett Co. cases] seek L. doubts G. c. constitutional about of possible region that It this in the 16A.” does application principle construed, so to avoid be if fairly possible a “statute must that it is unconstitutional but also not conclusion doubts score.” upon grave Inc., now case has been ar- Newspapers, Richmond before the United States Supreme my opin- gued decision here- in that case or other any ion if decision area this mandates after court by enjoying supremacy 278, 16A, the truncation of G. L. c. so that applies only testifies, victim there will be to the time when minor hand, it. time for this court to limit On other so enough if it becomes from future decisions controlling apparent not truncation this court was constitu- now declared by cannot ef- tionally required, present holding probably be new reversed fectively except by legislation. there decision on this Until is a subject by controlling not Court, I do believe the con- United States Supreme provided by Legislature cern expressed protection L. minor of sex crimes of G. victims language ac- be them by judicial should stripped to be issued The mere a decision yet tion. specter a factor contrib- United States Court should Supreme enforcement retreat and discontinued judicial uting mandate contained 16A. the legislative