Com. v. Boucher

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Here, the defendant had pled guilty to rape of a child and assault and battery on a child. Before he was about to be released from custody at the completion of his sentences, the State filed a petition to commit him as a sexually dangerous person under Gen. L. C. 123A, §§1, 12, as someone who has been convicted of a “sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.” Id. at 275. The trial judge dismissed the State’s petition as it found the State failed to show beyond a reasonable doubt that the defendant was likely to commit new sexual offenses unless confined. The court found that the State had to show a risk of committing a new offense of at least fifty percent, or, more likely than not. The State appealed. Here, the court was faced with defining the word “likely” as used in Gen. L. C. 123A, § 1 in defining a sexually dangerous person as someone “likely to engage in sexual offenses if not confined to a secure facility.” Id. at 274. The court noted that to determine what is “likely,” the court must consider the seriousness of the threatened harm, the relative certainty that the harm will occur, and the possibility of successful intervention to prevent the harm. Id. at 276. Further, “likely” indicates more than a mere possibility or probability, but it is not bound to a statistical definition such as “at least fifty percent.” Id. at 277. Further, the statute does not indicate it has to mean more likely than not. As such, the court found the trial court erred in its interpretation of “likely” and it remanded the case.




Supreme Judicial Court of Massachusetts

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