The state law that permits judges to lock up dangerous suspects pending trial does not apply to accused statutory rapists, though it does apply to certain crimes involving homemade explosive devices, the Massachusetts Supreme Judicial Court ruled Tuesday.
A 24-page opinion authored by Justice Kimberly S. Budd dealt with two Essex County cases in which prosecutors sought pretrial detention for defendants under the law, known as 58A.
Defendants can be held under the statute if prosecutors establish that “no conditions of release will reasonably assure the safety of any other person or the community,” records show.
The charged crime must involve “the use, attempted use or threatened use of physical force,” or “a substantial risk that physical force against the person of another may result,” or “a misdemeanor or felony involving abuse,” the ruling said.
The statutory rape case referenced in Tuesday’s SJC ruling involved David W. Barnes, a man in his 40s arraigned in May 2018 in Newburyport District Court for allegedly having sex with a 15-year-old girl.
He’s pleaded not guilty but has a change of plea hearing scheduled for Jan. 24, according to District Attorney Jonathan Blodgett’s office.
The SJC found that Barnes can’t be held while the case is pending under 58A, in part because his alleged crime does not include an element of force or threatened use of force.
“The fact that a child is incapable of consenting to sexual intercourse is relevant not to whether there is an element of force in statutory rape, but instead to whether consent is a defense to the crime (it is not),” Budd wrote.
She noted that a different statute, forcible rape of a child, does contain an element of force, so defendants charged with that crime can be held.
Blodgett said in a statement that his office “respectfully” disagrees with the SJC finding on Barnes.
“The facts of the case describe every parent’s nightmare: the 43-year old male defendant contacted a 15-year-old girl on social media and persuaded her to meet him at a hotel, where they engaged in sexual intercourse,” Blodgett said. “This is the very definition of predatory behavior and poses a threat to the safety of our communities.”
Blodgett said his office applauds Governor Charlie Baker for re-filing “A Bill to Protect Communities from Dangerous Persons.”
Blodgett urges “the Legislature to immediately pass this important legislation,” he said. “Among other critical and common sense reforms, the legislation would expand the list of offenses which can provide grounds for a [58A] dangerousness hearing to include rape of a child aggravated by age difference.”
Baker, a Republican, rolled out this year’s version of the bill Tuesday at a Major City Chiefs of Police Association event in Everett.
In the second case before the SJC, Budd wrote that a lower court judge properly ordered that William Scione be held under 58A. Scione was arraigned in Lawrence District Court in February 2018 on a charge of unlawfully placing an explosive or a destructive or incendiary device or substance, filings show.
Prosecutors said Scione “set fire in a can of gasoline at the foot of his ex-girlfriend’s driveway,” records show.
On Tuesday, the SJC found that jailing Scione under 58A while the case was pending was the right call.
“The record . . . supports a finding that Scione attempted to cause physical harm or placed the victim in fear of imminent serious physical harm as he placed a homemade I.E.D. at the bottom of the victim’s driveway, which, had it exploded, could have caused serious harm,” Budd wrote.
Scione pleaded guilty Nov. 29 and was sentenced to 2½ years in jail, with 1½ years to be served and the balance suspended for three years. During that period, he must get a mental health evaluation, stay away and have no contact with the victim and her family, and take medications as prescribed, Blodgett’s office said.
Material from the State House News Service was used in this report.