On Oct. 22, the state Supreme Judicial Court ruled in Commonwealth v. Carlos Viera that child sexual assault cases in which force is not used do not qualify for prosecutors to file for a dangerousness hearing for pretrial detention. Viera is a Lawrence police officer who allegedly met a 13-year-old boy for sex.
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.
The prior ruling was in the case of David Barnes, who is currently serving a five-year sentence for luring a teenage girl to an Amesbury hotel for sex.
In Massachusetts, dangerousness hearings — or 58A hearings — are a tool we as prosecutors have to protect victims and the community from violent and reckless offenders. In 1992, Gov. William Weld signed a bill instituting 58A hearings after several women were murdered by their partners. The bill has gone through several ideations to become what it currently is.
When a person is arrested, the defendant has a right to either bail or release upon personal recognizance. The exception may be when the commonwealth files a motion for a dangerousness hearing.
If a defendant is found dangerous, a judge can hold a defendant without bail for up to 120 days. In order to be considered dangerous, the judge must find there are no conditions of release that would assure the safety of the victim and community.
If the commonwealth does not move for a hearing, the judge may only decide what amount of bail will ensure the person returns to court and may not consider dangerousness.
Offenses such as murder, burglary, arson, violation of a restraining order and unlawfully carrying a weapon are named in the statute as crimes for which the commonwealth may file a motion for a dangerousness hearing.
But even if a crime is not specifically listed, it can qualify for dangerousness if it’s a felony crime and has any element of physical force against another person or involves abuse. Again, it is up to the prosecutor to request that a 58A hearing be held.
As the law stands today, the SJC reasons that since aggravated rape of a child (aggravated by age difference) and indecent assault and battery on a child under 14 are not specifically enumerated in the statute, and do not contain an element of force, the law does not allow the pretrial detention of these defendants.
As Essex district attorney, my priority is protecting the community. This means using all tools the law affords us to keep those accused of violent crimes behind bars and away from the community.
I strongly urge the Legislature to act in response to these decisions. While Justice David Lowy suggested the Legislature may choose to consider the omission of physical force in child rape cases with “alacrity,” more is needed and more is needed now.
In January, Gov. Charlie Baker refiled “An Act to Protect the Commonwealth from Dangerous Persons,” which would remedy this issue.
As district attorney, it is my duty to protect the public. That duty drastically is impeded if the law does not allow my office to seek pretrial detention under the dangerousness statute against perpetrators, such as a 43-year-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.
The dangerousness law was crafted by the Legislature to protect vulnerable victims and the public at large. Who is more vulnerable than a child?
Predators who victimize children are the very definition of dangerous.
Jonathan Blodgett is Essex District Attorney.