Dangerousness Hearing

The Massachusetts Dangerousness Statute:

Recent Evolution in Sex Assault Cases Involving Minors

A defendant can be held without bail during the pendency of a criminal case in Massachusetts if the Court finds by clear and convincing evidence that:

1. the defendant presents a danger and
2. that no conditions of release would serve to protect the community or the person to whom the danger is presented.  

In making this determination, the Court must considers various factors, to include:

• the nature and seriousness of danger posed if released;
• the nature and circumstances of the offense(s) charged;
• the potential penalty upon conviction;
• the defendant’s family ties,
• employment record,
• history of mental illness,
• reputation;
• risk of obstruction of justice or threat to a prospective witness or juror,
• if released; the defendant’s record of convictions;
• illegal drug distribution or drug dependency;
• whether the defendant is on bail for a prior charge;
• whether the acts alleged involve abuse;
• whether the defendant is on probation, parole or other release pending completion of sentence for any conviction;
• and whether the defendant is on release pending sentencing or appeal for any conviction. 

The charges for which a defendant may be detained prior to trial, due to dangerousness, are limited.  If a predicate offense is not charged, a defendant may not be placed in pretrial detention under the dangerousness statute [M.G.L. c. 276, § 58A]. 

Predicate offenses are either listed in the dangerousness statute or fall within one or more of the following categories:

1. felonies that have as an element of the offense the use, attempted use or threatened use of physical force against another person (force clause);
2. any other felony that, by its nature, involves a substantial risk of physical force against another person (residual clause); or
3. a misdemeanor or felony involving abuse as defined in M.G. L. c. 209A, § 1 (abuse clause). 

The force clause

The force clause of the dangerousness statute is straightforward.

An offense qualifies as a predicate crime pursuant to this clause if an element of the offense is the use, attempted use or threatened use of physical force against another person.  In making this determination, the Court must look to the elements of the offense, rather than the facts or circumstances surrounding the charged conduct. 

In 2019, the Supreme Judicial Court (SJC) held in Scione v. Commonwealth, 481 Mass. 225, 226 (2019) and Commonwealth v. Vieira, 483 Mass. 417, 421 (2019) that the charges of Rape of a Child, Aggravated by Age and Indecent Assault and Battery on a Child under Fourteen do not qualify as predicate offenses under the force clause because neither of these crimes contain an element involving the use, attempted use or threatened use of physical force against another.  The SJC further ruled in Scione that the residual clause of the dangerousness statute is unconstitutionally vague.

Because of these recent SJC decisions, the prosecution must prove to the Court when moving to hold a defendant without bail on dangerousness grounds based on charges of Rape of a Child, Aggravated by Age or Indecent Assault and Battery on a Child under Fourteen that the offense qualifies for pretrial detention under the abuse clause. 

There is a fundamental difference between the use of force and abuse.  The use of force can be, and is, an element of particular crimes. In contrast, abuse is not an element of a crime, and therefore, the Court may look to the specific facts and circumstances of each case when determining if one of these crimes qualifies as a predicate offense under the abuse clause.

What is Abuse?

Abuse is defined in M.G.L. c. 209A, § 1, as the occurrence of one or more of the following acts between family or household members:

• (a) attempting to cause or causing physical harm;
• (b) placing another in fear of imminent serious physical harm; or
• (c) causing another to engage involuntarily in sexual relations by force, threat or duress. 

Due to recent changes in the legal interpretation of the Commonwealth’s dangerousness statute, these actions described as abuse have not specifically been defined by law.  This has left open the interpretation to the trial judges of the District and Superior Courts. 

There were several proposed new dangerousness statutes introduced by the legislature in 2019 that have not yet enacted.  Therefore, having a skilled lawyer in your corner is absolutely necessary when facing criminal charges in Massachusetts that could expose you to pretrial detention on the basis of dangerousness. 

The Law Office of John L. Calcagni III, Inc. has successfully litigated many dangerousness hearings, leading to the release on many defendants on bail.  If you or a family member have been charged with Rape of a Child, Aggravated by Age and/or Indecent Assault and Battery on a Child under Fourteen in Massachusetts, or any other predicate offense and face pretrial incarceration on grounds of dangerousness, call our office immediately for a free consultation at (508) 213-9113 or email us.