-: SJC-13504, Commonwealth v. Alvin Campbell.
-: Okay, Attorney Levin.
-: Thank you, Your Honor, good morning.
May it please the court,
Patrick Levin on behalf of Alvin Campbell.
Mr. Campbell's claim in this case
produces a counterintuitive result,
but ultimately it's legally fairly straightforward.
The force clause of general laws Chapter 276 Section 58A
includes only those offenses that have as an element
the use, attempted use, or threatened use of physical force
against the person of another.
-: Try again, can we define
where we are in the categorical part of it
and just jump right in.
So, categorical review, which we said in Escobar,
is all the force cause cases and the like,
the example that's often used for assault and battery,
if the worst assault and battery
not to quite a punch in the face,
but assault and battery can be reckless.
And we have the cases, for examples,
where someone punches a glass window,
a shard hits someone recklessly.
So we say that assault and battery
does not come under the force clause.
Right? -: Yes, Your Honor.
-: That's where we're at.
When I look at section 22,
at one extreme we have a stranger rape by the bushes.
-: Yes. -: Then the other extreme,
which I think is where we're gonna be
focusing our attention to, as I see it,
would be those cases involving constructive force
or incapacitated victim.
-: I agree. -: Are you reading as well?
-: Yes.
-: All right, so if you look at constructive force,
and so we're not dealing with recklessness.
We're dealing with the force
isn't, even in a constructive force
in incapacitated victim case,
an active penetration without consent,
so it's force and against the will of the victim.
Attorney Levin: Yes.
-: Tell me why that doesn't satisfy force
when it's forcible against the will of the victim
because of the physical act of penetration.
-: So the answer to that question pulls back
to the statutory language of Section 58A,
which is the use, attempted use,
or threatened use of physical force.
-: Right. -: So in Escobar
the key statutory phrase was use of force
against the person of another.
In this case it's use of physical force.
-: Okay, so isn't the act of,
un-consensual act of penetration an act of physical force?
-: So in common law terms,
the answer to that question certainly is yes.
At common law, force is any application of,
any touching of another person is a use of force.
-: This isn't just any touching.
-: No, but at common law,
that's the meaning of the word force.
But this court has said that that common law meaning
is not what is meant by the phrase physical force-
-: But that's not what we're talking about, is my point,
that's all.
We're not talking about just a, you know, touching.
-: Yes, that's certainly true, -: Okay.
-: Your Honor.
But I guess my point is just that
there's a difference between
common law force, which this court has held
does not qualify under section 58A,
and that the definition that this court has given of
the phrase physical force as that phrase is used
in that statute is a violent force
likely to cause bodily injury.
And- -: Did we say that, Mr. Levin?
-: That's in Vieira, Commonwealth versus Vieira.
-: Violent. -: Yes, substantial
or violent force capable of causing bodily injury.
And it goes back to, I mean, in this court-
-: Why doesn't this meet the statutory definition then?
I mean, you know as well as I know as this goes along,
what's one of the first things
that happens in these prosecutions?
You have an examination,
and sometimes you look for physical evidence
of the forcible rape.
So how does this not meet the definition
of violent force likely to cause bodily injury
when you're doing this against somebody's will?
-: So there's two key parts of this statutory phrase, right?
-: Mm-hm. -: And one part
is the physical force,
and so I've tried to speak to that,
what this court has defined that phrase to mean.
And the other part of the statutory phrase
is an offense that has as an element
the use of physical force.
And so what that means, what it means for an offense
to have a particular fact as an element
is that proof of that fact is required
in order for someone to be convicted of the offense, right?
-: Mm-hm. -: And so that's what
the court, when the court talks about
the categorical approach,
and particularly the U.S. Supreme Court
tends to talk about it in terms of
what is the least amount of conduct
that is criminalized by a particular
offense. -: And that would go back to
the incapacitated or constructive.
-: Right, and so the question is,
is it possible to be convicted of the crime of rape
without the Commonwealth having shown the use,
attempted use, or threatened use of that type of force
that is liable to cause a bodily injury.
And so if you look to, to take the-
-: I'm sorry to interrupt you,
but can you take me back to Vieira
and how we came up with that?
-: Okay, so- -: What were
the facts in Vieira?
-: So Vieira's an indecent assault and battery on a child.
Those are the facts of Vieira.
And then if you go back one case further,
you have Scione versus Commonwealth,
which is the statutory rape case.
And so I guess ultimately the simplest way
of looking at this case
is to take the example that Justice Gaziano gave
of the incapacitated victim or the incompetent victim
and to compare the required elements of proof
for the offense or rape of an incompetent victim
with the required elements of proof
for the offense of statutory rape,
which in Scione this court held-
-: But don't you have a problem in Scione?
I know you said it's dicta, right?
-: Yes, yes. -: When we say rape of child
with force versus rape of child.
But in Scione we also said that rape of child with force
would qualify under the force charge.
-: Yes, that's true- -: Right?
-: Your Honor, and- -: Okay, rape of child
with force is the same crime as Section 22,
but with age discrepancies. -: I agree.
So that's a problem for you in Scione, right?
-: Well, that whole discussion of the force elements
of these two crimes in Scione is dicta.
And so if you look at the holding in Scione,
the holding is there is no element of force
in the statutory rape offense.
And that's- -: That's the holding period,
and everything else you say- -: That's the holding.
And so you obviously, you know,
in the course of the discussion
you contrast that with other statutes
that do enumerate an element of force,
but you don't then go on to analyze those statutes,
because those statutes aren't in front of you,
to determine whether the force element of those crimes
is the necessary physical force under the statute,
and we know- -: So, twice in Scione
we actually said that the force element
in a section 22 rape would be satisfied-
-: Yes, but- -: One by comparing it
to adult crimes and one by comparing it
to rape of child with force.
-: Yes.
But as I said, there isn't any analysis
of what the phrase physical force means
in the statute in those cases.
And so the argument that's in front of you here
was not in front of you there.
And the statutes that are in front of you here,
were not in front of you there.
-: So let's talk about the force that you are arguing,
why it would not be physical force under 58A
-: Yes, so to go back to the incompetent victim,
and what I was gonna say is if you compare the elements
of the statutory rape offense with the Section 22 offense
of rape of an incompetent victim,
there is no material distinction.
-: Oh, no, there's consent.
There's a huge distinction.
-: There is no consent.
In either of those cases there is no legal consent.
-: Well, there's an incapability of giving consent.
The statutory rape cases that we had in Scione
we envisioned, and I forget who argued that,
and we agreed, was to take the two 16-year-olds
or 15-year-olds who have consensual relationship
out of the picture,
because it's consensual sexual intercourse.
In the incapacitated victim, we have someone who's,
you know, on the dorm room bed passed out
drunk out of their mind who can't consent
because of that.
So it's against the will of the victim in one instance
and with the will of the victim
in the statutory rape instance, correct?
-: Yes, but the fact of the matter is
that the required element is not an element of force,
but that the non-consent element that you're talking about
is satisfied by the absence of lawful consent.
-: Well it's- -: Regardless of whether
there is factual consent.
And so- -: Correct me, if I'm wrong,
the force element is there has to be some type of force
and against the will, so it's part and parcel
of the same thing. -: Yes, they're
separate elements, yes.
And so to take the against the will element, right,
that the absence of lawful consent,
even in adult rape cases, does not necessarily imply
a factual absence of consent.
And so if you take a case of an incompetent victim,
a mentally disabled victim, for example,
an intellectually disabled victim,
and we have cases like that in this Commonwealth,
Commonwealth versus St. Louis is a case
that I cite in my brief
where there's an intellectually disabled victim in that case
who actually is the initiator of the sexual contact.
And so it's equally true that a rape can be,
a conviction of rape can be returned,
even in a scenario where there exists factual consent,
if there is no ability for lawful consent.
-: What about the act of penetration
in and of itself as satisfying force?
-: So, I think it's clear from Scione
that that can't be the case.
-: Well, I should qualify,
an un-consented to act of penetration.
-: So again, there is no distinction
in terms of the required elements of the crime,
because as I said, if you have that case
of the intellectually disabled victim
who factually consents but is legally incapable of consent,
that is the same non-consensual penetration
that exists in the statutory rape context.
-: So because we take a categorical approach to it,
that is why, I mean, you're not making the argument
that a non-consented physical penetration doesn't meet it.
It's because we can sweep in
this other category of behavior that-
-: Right, and so- -: We can't do it.
-: So under the categorical approach,
what this court and the Supreme Court say
is that the very least of the conduct
that is prohibited by a given statute
is the conduct that we look to.
Because if that is the only conduct that is required
to return a conviction, then that's the conduct
that the offense has as an element,
which is the statutory language here.
Just to circle back.
-: So, I mean, without consent,
even in the intellectually disabled person,
the defendant has forced himself on the victim, correct?
-: Yes, I think that's true,
but not in the way that this court
has defined that statutory phrase.
And so it's not,
the word force has distinct meanings
in different areas of the law.
-: The statutory phrase is the 58A phrase-
-: Of physical force. -: Of physical force.
-: Right, right.
-: And I guess the question I have for you
is we have physical force
because of the act of penetration
is part and parcel, was the definition of the crime.
-: Well, if yes, so I agree with that,
except to say that the act of penetration
in this Commonwealth,
I cite Commonwealth versus Donlan for this in my brief,
that element is satisfied by evidence of any touching
of the vulva or labia.
And so it's equally true that, you know,
any touching of an incompetent
or an unconscious person's genitalia
constitutes the crime of rape.
And, although extremely offensive
and an enormous affront to that victim's dignity,
that victim's personal integrity, that is not physical force
as this court has defined it under section 58A,
which requires a likelihood of bodily harm.
And when you look at the cases
that talk about common law force and offense of battery.
-: The likelihood of bodily harm comes from Vieira?
-: I'm sorry? -: That comes from Vieira?
That phrase? -: well it comes from Vieira,
but it traces back through Vieira
to Commonwealth versus Everhart,
Commonwealth versus Colon out of the appeals court,
which takes it from Commonwealth versus-
-: Those are all the ACC cases. -: From the United States
versus Johnson, yes. -: But those are all
the ACC cases, right? -: Yes, from the ACC cases.
Where we use- -: Which that statute uses-
-: Which is a modified categorical.
-: That statute uses identical language.
And so I did wanna address
this modified categorical approach question.
-: Right, but isn't there a distinction
between using the modified,
I know this is obviously the distinction
between modified, categorical.
It was modified or categorical
you probably wouldn't be standing here, actually,
but if you're saying the definition of force
is going to be the same in the ACC situation
and 58A under, whether you use categorical
or modified categorical. -: But in the ACC context,
this court has said that we can look beneath the indictment.
-: Right. -: Beneath the charged offense
to see what actually were the nature of the elements
that were proved to the jury in the prior crime.
-: I'm just wondering- -: Whereas-
-: If we're bound by the ACC cases
and the definition of force,
because they allow for the modified categorical.
-: Well, I think that the court
has very expressly adopted that definition
in Scione and in Vieira.
And there was actually
an extensive discussion of this in both of those cases,
where the court says this is the same language,
there's no reason to think that the legislature meant it
to mean anything different. -: But you pointed out that,
that those cases are not this case.
Scione is not about, doesn't have the same facts.
So, we were not looking at
an expanded definition of force and whether or not
that was the same as, you know, ACC.
Just to be clear. -: Yes, yes, of course.
But the point being that
this incongruity does not arise
from this court's understanding
of what that statutory language means.
It arises from the fact that a substantial portion
of the statute as enacted by the legislature
has been struck down.
And so you have the legislature enacts the statute that says
any felony offense that has as an element
the use, attempted use, or threatened use
of physical force against the person of another
or any other offense that presents a substantial risk
that such force may result.
-: Your argument is basically this was a residual clause.
-: Yes, and in fact, most- (indistinct)
Most cases are residual clause cases.
The force clause is extremely narrow,
and particularly in a jurisdiction like Massachusetts
where so many offenses are common law offenses
that adopt a misdemeanor common law definition
of the word force.
So, if you take Commonwealth versus Mora,
which is another ACC case out of this court,
that's a robbery case.
And you see the statutory language
under Chapter 265 Section 19,
punishes anyone who robs another by force and violence
or by assault and putting in fear.
This court says that is not categorically
a forcible crime under the force clause,
because it's possible to commit it
without that type of force that requires,
you know, the type of force that will cause bodily harm,
because the example in that case is a purse snatching
that occurs, you know, before the victim
is even aware of it.
And so that is force within the common law definition
because you've touched the other person,
but it's not physical force
within the meaning of section 58A,
even though robbery clearly is a violent crime,
a crime of force at common law.
But that's not what the legislature meant,
and it works in both directions, right?
Just because the statute says the word force
doesn't necessarily mean it qualifies
under the force clause in Section 58A,
but just because the statute doesn't use the word force
doesn't necessarily mean it doesn't qualify.
So if you take Chapter 265 Section 14 or 15,
assault with intent to murder,
that statute doesn't use the word force,
but it clearly does have as an element
the attempted use of physical force
against the person of another,
because the definition of an assault
is an attempted use of force.
And the intent to murder clearly requires it
to be force of the type that is likely
to result in bodily injury.
And so there's nothing magic about the word force here.
You have to look beneath that word
and see what does the element
actually require the Commonwealth
to prove in the least case.
If there are no more questions,
I would just ask the court
to reverse the single justice's order
and remand the case for a new bail hearing.
-: Okay, thank you very much.
Attorney Levin: Thank you.
-: Okay, Attorney Lewis.
-: Good morning, are we still morning?
Your Honors, Sarah Lewis on behalf of the Commonwealth.
With me today is the trial prosecutor on the case,
Assistant District Attorney Lynn Feigenbaum.
-: I was a bit confused by your brief when you said that
the other side of the defendant
was not using the categorical approach.
I thought, as we laid it out,
or I laid it out to start, you know,
my example of the assault and battery,
the punch in the face versus the window shard,
and then we have rape, which, you know,
at one extreme is a stranger rape the other extreme
would be constructive force incapacitated victim.
I thought we'd go to just like the window shard case,
we go to incapacitated victim constructive force.
Isn't that true?
-: I would respectfully disagree insofar as
the categorical approach does not look at the facts
and circumstances of the case.
-: Right, so we go to the crime
and we say, how could this be committed
basically almost in the light
most favorable to the defendant?
-: And my understanding of the categorical approach
is that we look at the elements of the offense.
Here, one of the elements being the use of force.
If we dive deeper into how that force is proved-
-: Okay, so we- -: That seems to go
to the modified categorical approach,
as to looking on the face,
what the elements of the crime are.
-: I'm not so sure about that.
So if we look, go to Scione for a second,
right? -: Yep.
-: So we have rape of child,
and I'm sure Ms. Feigenbaum, and actually myself,
have prosecuted rape or child cases where
you charge rape of child,
and it's an egregious, you know,
they're all bad, but it's an egregious rape,
but you just can't prove force.
So you would charge rape of child, you know,
sometimes offensively called statutory rape, but still rape.
But it also could be committed
by the two consensual 15-year-olds.
So that's why we look at the two 15-year-olds
having consensual sex, not the father molesting the child.
-: And in Escobar, I think we said an offense
is a predicate offense under the force clause
if and only if the elements of the offense
always fall within the ambit of the force clause.
-: Right, so I don't get your analysis
about why that's modified.
-: So, first, statutory rape doesn't have
as an element the use of force.
So the question in Scione, in my understanding,
was to look at whether it necessarily still involves
the use of physical force,
because it didn't have as an element the use of force.
Rape has as an element the use of force.
But even if this court disagrees with the common-
-: But the force in rape can be accomplished
through constructive force and/or
an incapacitated victim, correct?
-: Yes, and I would suggest that those
are looking to the facts,
and that's looking to the facts
and circumstances of the case.
But even if it's not- -: No, it's looking at
whether it falls within the ambit
of the use of force in the least of it.
-: And if that's true, then I think irrespective
of the use of force element of rape,
as Your Honors were suggesting,
rape, the other elements penetration
with a non-consenting adult
also satisfies the force clause of 58A,
because that necessarily involves physical force,
so I think there are- -: 'Cause you have to
take the crime as a totality,
'cause just as Mr. Levin said,
you can't just focus on the elements.
'Cause sometimes that element of force isn't there.
We look at the against the will part of it
and the act of physical penetration.
-: Yes, and I understand that the use of force can be,
that this court is interpreted it as
it can be satisfied by constructive force,
but the penetration together with lack of consent
also satisfies
the force clause of 58A. -: Constructive force,
and I think I've heard some,
I was looking at them this morning,
there's an appeals court case where
a police officer, you know, in uniform
takes a motorist into the cruiser and says,
"Hey," and rapes them,
and the motorist female says,
"I didn't say anything but I was petrified,
"and he's using his authority as a police officer,
"to accomplish against her will,"
even though she didn't say anything.
And was again petrified and didn't,
that's constructive force, correct?
-: Yes, and I believe you're referring to,
and I may be not pronouncing it correctly,
but Caracciola. -: Yeah.
-: And I actually think that case is very instructive here,
because what the court,
from my understanding was suggesting,
was that the use of force element of rape
would be superfluous if it wasn't interpreted
as allowing for more than just physical force.
Superfluous because rape,
penetration with a non-consenting adult,
constitutes physical force.
Therefore, if we're going to add,
the legislature adds this additional element
of use of force, the court interpreted it
as allowing more than just physical force,
constructive force, duress, threats, fear.
But that doesn't take rape out of the force clause of 58A,
because you have these two other elements of penetration
and lack of consent.
-: Yeah, and I've, this is Commonwealth versus Mayana,
103 Mass Appeals Court, 1104 rescript, recent case,
"Constructive force exists where the defendant's words
"or conduct create an intimidating environment
"which instills fear in the victim,
"compelling the victim to submit."
Right, so you say that plus
the element of against the will
plus the element of penetration equals force.
-: Yes, I do.
-: Equals, well, does it- -: Physical force.
-: How does it equal physical force based on
the definition, I guess in Vieira?
-: And that's the other point I wanted to turn to.
I disagree that the court adopted the ACC definition
of physical force in Vieira.
What the court said was that
the force clause of 58A mirrors how violent crime
or a violent offense is defined under the ACC,
Federal ACC, Massachusetts ACC,
but it didn't go so far as to adopt the definition
of physical force that the ACC adopts,
or that it has adopted an ACC context.
But what the court did say is that physical force
for the purposes of 58A does not mean, quote,
"The use of force so minimal
"as to encompass an offense of battery."
And I think that's really important.
To hold that rape does not qualify as a predicate offense
under the force clause here,
would equate it then to an offense of battery
in a de minimis touching.
And I think we all know that that's not the case.
So I would disagree that this court adopted that definition
of the force clause in 58A, adopted the definition from ACC,
but even if it does rape would qualify.
-: Is this a question of legislative intent?
-: Yes, yes.
And the legislative intent of 58A
is to systematically identify those
who may present a danger to society
and to incapacitate them before the danger may be realized.
And the question in this case is a threshold question,
that the scheme of 58A is to identify a predicate offense.
That's not going to say that the court then doesn't move on
to look at the facts and circumstances of the case.
The Commonwealth bears a heavy burden at the hearing
at a 58A hearing to establish dangerousness
by clear and convincing evidence.
The question here- -: But we're talking about
the initial stage where whether
you even get the hearing. -: Exactly, but I was
raising that point to say that it's bifurcated.
The question is, does an offense qualify as a predicate?
And even if it does, there's still another protection
for the defendant to be held pretrial.
-: But yet the constitutional overlay of this, of course, is
to be constitutional under Salerno in our case law,
it has to be the worst of the worst.
Correct?
The crimes that you can detain on.
-: And a very serious crime.
I will say 58A does not say make a predicate
a violent crime that has as an element
the use, attempted use, or threatened use of physical force,
like the ACC.
It says a felony that has as an element the use,
threatened use, attempted use.
It never- -: That's a distinction
between the ACC and 58A.
-: That is a distinction. -: The use of the word violent.
-: It is a distinction.
And I think that leads to the definition
of physical force in the context of ACC.
But again, rape is an extreme crime of violence.
So if we do pull from the ACC-
-: I mean, it's just like, you know,
but that's what some of the ACC cases say.
And we said in Escobar,
if you ask the person on the street,
"Is rape a violent crime,"
I would think 100% of the people are gonna say yes.
If you said, "Is assault and battery a violent crime?"
99 would say yes.
Very few people would know, of course,
you punch the shard of glass,
and there's a recklessness part of it.
-: Right, and I think those distinctions
are relevant in an assault and battery context,
where you're looking at, as Your Honor did in Escobar,
whether it can be committed recklessly and wantonly.
And I think that's different from rape, where a defendant,
it can be proved through defendant
intending the sexual intercourse
with a non-consenting adult by force.
And so you have this element of force,
and irrespective of that element,
you have physical force
because of the penetration with a non-consenting adult.
-: If we decide this case in the defendant's favor,
would rape of child with force be a non-detainable offense?
-: I would think yes, because...
But that would be against the court statement in Scione.
Very, very- -: I wouldn't
rely on that here,
just because that wasn't what we were focused on.
-: And I understand.
I would just point out, though,
that there was a clear statement that forcible rape
of a child does qualify.
And there is also, as I pointed out in our brief,
cases that say that forcible rape of a child
can be committed through constructive force,
because, again, you have these other elements
of penetration and lack of consent,
which is distinct from statutory rape
involving the voluntary participation of two people.
The lack of consent in adult rape
I think is a crucial consideration here.
If Your Honors have no further questions,
the Commonwealth will rest on its brief.