SALEM, Mass. — The state's highest court has again ruled that child rape cases in which force is not used do not open the door for prosecutors to seek pre-trial detention — and that neither do certain indecent assault and battery cases — in a decision involving the case of a suspended Lawrence cop charged with meeting a 13-year-old boy for sex.
It's a ruling that has Essex County District Attorney Jonathan Blodgett again publicly calling for action on a measure filed by the governor that would fix what both say is a dangerous loophole in the state's bail law.
In a decision Tuesday, the Supreme Judicial Court rejected an appeal by Blodgett's office in the case against suspended Lawrence police officer Carlos Vieira.
Prosecutors had taken the unusual step of appealing the decision of a Lawrence District Court judge who concluded that certain types of aggravated child rape, where the "aggravating" factor is an age difference and not force, do not fall under a section of the bail law that provides for pre-trial detention where a defendant is found to pose a danger. Blodgett's office had argued that they could still proceed to seek pre-trial detention on the indecent assault and battery charge, but the judge disagreed, leading to the appeal.
“This is the second time my office has argued before the SJC that prosecutors should have the ability to file dangerousness petitions against defendants charged with sexually assaulting children and this is the second time the SJC has ruled that the law no longer allows for us to do so," said Blodgett in a statement after the ruling. "I strongly urge the Legislature to act in response to these decisions."
The prior case involved a Newton pharmaceutical executive, David Barnes, who in June pleaded guilty to luring a teenage girl to an Amesbury hotel for sex. In January, the SJC concluded that the original charge against Barnes, aggravated child rape, did not entitle Blodgett's office to seek pre-trial detention for Barnes, 45, based on the age difference between Barnes and the girl. Barnes is now serving a five-year prison term.
The SJC's ruling in that case included a concurring opinion by Justice David Lowy, who suggested that, "Given today's result, the Legislature may choose to consider this omission with alacrity."
Gov. Charlie Baker immediately re-filed a proposed bill that would expand the categories under which a defendant can be denied bail to include child sexual abuse charges, regardless of whether force was used. But concerns have been raised that the bill goes too far.
"As district attorney, it is my duty to protect the public," Blodgett said in response to Tuesday's ruling. "That duty drastically is impeded if the law does not allow my office to seek pre-trial detention under the dangerousness statute against perpetrators, such as a 43-year-old old man since convicted of rape of a child and a police officer alleged to have engaged in sexual acts with a 13-year-old boy."
In its ruling Tuesday, the SJC concluded that if the more serious charge of aggravated child rape does not fall under the dangerousness statute in a case, neither should a less-serious charge of indecent assault and battery — even where "force" is a required element of the crime.
"That a child cannot consent makes the act unlawful; it does not, however, transform the act into an application of physical force," Justice Barbara Lenk wrote.
"Physical force is not required in order to transform sexual intercourse into rape; lack of consent suffices," Lenk wrote. "So too with indecent assault and battery; that the underlying touching was offensive is sufficient."
"The dangerousness law was crafted by the Legislature to protect vulnerable victims and the public at large," said Blodgett. "Who is more vulnerable than a child? Defendants who prey on children are the very definition of dangerous.”
Vieira is free on $10,000 bail with a condition that he remain confined to his home except for medical appointments, court appearances and weekly grocery shopping. He is due back in court on Nov. 7 for another pre-trial hearing in his case.