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<v ->SJC-13504, Commonwealth v. Alvin Campbell.</v>

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<v ->Okay, Attorney Levin.</v>

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<v ->Thank you, Your Honor, good morning.</v>

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May it please the court,

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Patrick Levin on behalf of Alvin Campbell.

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Mr. Campbell's claim in this case

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produces a counterintuitive result,

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but ultimately it's legally fairly straightforward.

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The force clause of general laws Chapter 276 Section 58A

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includes only those offenses that have as an element

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the use, attempted use, or threatened use of physical force

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against the person of another.

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<v ->Try again, can we define</v>

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where we are in the categorical part of it

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and just jump right in.

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So, categorical review, which we said in Escobar,

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is all the force cause cases and the like,

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the example that's often used for assault and battery,

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if the worst assault and battery

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not to quite a punch in the face,

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but assault and battery can be reckless.

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And we have the cases, for examples,

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where someone punches a glass window,

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a shard hits someone recklessly.

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So we say that assault and battery

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does not come under the force clause.

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Right?
<v ->Yes, Your Honor.</v>

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<v ->That's where we're at.</v>

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When I look at section 22,

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at one extreme we have a stranger rape by the bushes.

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<v ->Yes.</v>
<v ->Then the other extreme,</v>

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which I think is where we're gonna be

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focusing our attention to, as I see it,

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would be those cases involving constructive force

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or incapacitated victim.

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<v ->I agree.</v>
<v ->Are you reading as well?</v>

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<v ->Yes.</v>

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<v ->All right, so if you look at constructive force,</v>

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and so we're not dealing with recklessness.

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We're dealing with the force

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isn't, even in a constructive force

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in incapacitated victim case,

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an active penetration without consent,

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so it's force and against the will of the victim.

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<v Attorney Levin>Yes.</v>

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<v ->Tell me why that doesn't satisfy force</v>

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when it's forcible against the will of the victim

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because of the physical act of penetration.

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<v ->So the answer to that question pulls back</v>

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to the statutory language of Section 58A,

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which is the use, attempted use,

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or threatened use of physical force.

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<v ->Right.</v>
<v ->So in Escobar</v>

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the key statutory phrase was use of force

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against the person of another.

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In this case it's use of physical force.

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<v ->Okay, so isn't the act of,</v>

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un-consensual act of penetration an act of physical force?

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<v ->So in common law terms,</v>

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the answer to that question certainly is yes.

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At common law, force is any application of,

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any touching of another person is a use of force.

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<v ->This isn't just any touching.</v>

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<v ->No, but at common law,</v>

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that's the meaning of the word force.

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But this court has said that that common law meaning

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is not what is meant by the phrase physical force-

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<v ->But that's not what we're talking about, is my point,</v>

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that's all.

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We're not talking about just a, you know, touching.

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<v ->Yes, that's certainly true,</v>
<v ->Okay.</v>

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<v ->Your Honor.</v>

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But I guess my point is just that

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there's a difference between

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common law force, which this court has held

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does not qualify under section 58A,

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and that the definition that this court has given of

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the phrase physical force as that phrase is used

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in that statute is a violent force

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likely to cause bodily injury.

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And-
<v ->Did we say that, Mr. Levin?</v>

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<v ->That's in Vieira, Commonwealth versus Vieira.</v>

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<v ->Violent.</v>
<v ->Yes, substantial</v>

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or violent force capable of causing bodily injury.

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And it goes back to, I mean, in this court-

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<v ->Why doesn't this meet the statutory definition then?</v>

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I mean, you know as well as I know as this goes along,

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what's one of the first things

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that happens in these prosecutions?

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You have an examination,

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and sometimes you look for physical evidence

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of the forcible rape.

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So how does this not meet the definition

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of violent force likely to cause bodily injury

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when you're doing this against somebody's will?

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<v ->So there's two key parts of this statutory phrase, right?</v>

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<v ->Mm-hm.</v>
<v ->And one part</v>

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is the physical force,

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and so I've tried to speak to that,

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what this court has defined that phrase to mean.

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And the other part of the statutory phrase

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is an offense that has as an element

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the use of physical force.

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And so what that means, what it means for an offense

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to have a particular fact as an element

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is that proof of that fact is required

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in order for someone to be convicted of the offense, right?

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<v ->Mm-hm.</v>
<v ->And so that's what</v>

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the court, when the court talks about

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the categorical approach,

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and particularly the U.S. Supreme Court

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tends to talk about it in terms of

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what is the least amount of conduct

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that is criminalized by a particular

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offense.
<v ->And that would go back to</v>

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the incapacitated or constructive.

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<v ->Right, and so the question is,</v>

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is it possible to be convicted of the crime of rape

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without the Commonwealth having shown the use,

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attempted use, or threatened use of that type of force

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that is liable to cause a bodily injury.

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And so if you look to, to take the-

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<v ->I'm sorry to interrupt you,</v>

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but can you take me back to Vieira

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and how we came up with that?

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<v ->Okay, so-</v>
<v ->What were</v>

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the facts in Vieira?

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<v ->So Vieira's an indecent assault and battery on a child.</v>

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Those are the facts of Vieira.

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And then if you go back one case further,

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you have Scione versus Commonwealth,

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which is the statutory rape case.

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And so I guess ultimately the simplest way

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of looking at this case

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is to take the example that Justice Gaziano gave

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of the incapacitated victim or the incompetent victim

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and to compare the required elements of proof

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for the offense or rape of an incompetent victim

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with the required elements of proof

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for the offense of statutory rape,

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which in Scione this court held-

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<v ->But don't you have a problem in Scione?</v>

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I know you said it's dicta, right?

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<v ->Yes, yes.</v>
<v ->When we say rape of child</v>

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with force versus rape of child.

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But in Scione we also said that rape of child with force

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would qualify under the force charge.

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<v ->Yes, that's true-</v>
<v ->Right?</v>

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<v ->Your Honor, and-</v>
<v ->Okay, rape of child</v>

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with force is the same crime as Section 22,

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but with age discrepancies.
<v ->I agree.</v>

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So that's a problem for you in Scione, right?

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<v ->Well, that whole discussion of the force elements</v>

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of these two crimes in Scione is dicta.

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And so if you look at the holding in Scione,

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the holding is there is no element of force

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in the statutory rape offense.

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And that's-
<v ->That's the holding period,</v>

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and everything else you say-
<v ->That's the holding.</v>

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And so you obviously, you know,

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in the course of the discussion

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you contrast that with other statutes

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that do enumerate an element of force,

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but you don't then go on to analyze those statutes,

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because those statutes aren't in front of you,

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to determine whether the force element of those crimes

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is the necessary physical force under the statute,

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and we know-
<v ->So, twice in Scione</v>

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we actually said that the force element

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in a section 22 rape would be satisfied-

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<v ->Yes, but-</v>
<v ->One by comparing it</v>

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to adult crimes and one by comparing it

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to rape of child with force.

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<v ->Yes.</v>

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But as I said, there isn't any analysis

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of what the phrase physical force means

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in the statute in those cases.

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And so the argument that's in front of you here

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was not in front of you there.

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And the statutes that are in front of you here,

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were not in front of you there.

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<v ->So let's talk about the force that you are arguing,</v>

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why it would not be physical force under 58A

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<v ->Yes, so to go back to the incompetent victim,</v>

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and what I was gonna say is if you compare the elements

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of the statutory rape offense with the Section 22 offense

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of rape of an incompetent victim,

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there is no material distinction.

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<v ->Oh, no, there's consent.</v>

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There's a huge distinction.

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<v ->There is no consent.</v>

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In either of those cases there is no legal consent.

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<v ->Well, there's an incapability of giving consent.</v>

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The statutory rape cases that we had in Scione

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we envisioned, and I forget who argued that,

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and we agreed, was to take the two 16-year-olds

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or 15-year-olds who have consensual relationship

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out of the picture,

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because it's consensual sexual intercourse.

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In the incapacitated victim, we have someone who's,

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you know, on the dorm room bed passed out

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drunk out of their mind who can't consent

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because of that.

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So it's against the will of the victim in one instance

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and with the will of the victim

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in the statutory rape instance, correct?

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<v ->Yes, but the fact of the matter is</v>

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that the required element is not an element of force,

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but that the non-consent element that you're talking about

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is satisfied by the absence of lawful consent.

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<v ->Well it's-</v>
<v ->Regardless of whether</v>

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there is factual consent.

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And so-
<v ->Correct me, if I'm wrong,</v>

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the force element is there has to be some type of force

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and against the will, so it's part and parcel

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of the same thing.
<v ->Yes, they're</v>

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separate elements, yes.

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And so to take the against the will element, right,

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that the absence of lawful consent,

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even in adult rape cases, does not necessarily imply

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a factual absence of consent.

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And so if you take a case of an incompetent victim,

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a mentally disabled victim, for example,

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an intellectually disabled victim,

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and we have cases like that in this Commonwealth,

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Commonwealth versus St. Louis is a case

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that I cite in my brief

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where there's an intellectually disabled victim in that case

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who actually is the initiator of the sexual contact.

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And so it's equally true that a rape can be,

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a conviction of rape can be returned,

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even in a scenario where there exists factual consent,

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if there is no ability for lawful consent.

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<v ->What about the act of penetration</v>

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in and of itself as satisfying force?

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<v ->So, I think it's clear from Scione</v>

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that that can't be the case.

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<v ->Well, I should qualify,</v>

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an un-consented to act of penetration.

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<v ->So again, there is no distinction</v>

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in terms of the required elements of the crime,

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because as I said, if you have that case

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of the intellectually disabled victim

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who factually consents but is legally incapable of consent,

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that is the same non-consensual penetration

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that exists in the statutory rape context.

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<v ->So because we take a categorical approach to it,</v>

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that is why, I mean, you're not making the argument

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that a non-consented physical penetration doesn't meet it.

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It's because we can sweep in

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this other category of behavior that-

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00:11:33.904 --> 00:11:35.090
<v ->Right, and so-</v>
<v ->We can't do it.</v>

253
00:11:35.090 --> 00:11:36.870
<v ->So under the categorical approach,</v>

254
00:11:36.870 --> 00:11:38.700
what this court and the Supreme Court say

255
00:11:38.700 --> 00:11:40.920
is that the very least of the conduct

256
00:11:40.920 --> 00:11:43.050
that is prohibited by a given statute

257
00:11:43.050 --> 00:11:44.340
is the conduct that we look to.

258
00:11:44.340 --> 00:11:48.600
Because if that is the only conduct that is required

259
00:11:48.600 --> 00:11:52.710
to return a conviction, then that's the conduct

260
00:11:52.710 --> 00:11:54.480
that the offense has as an element,

261
00:11:54.480 --> 00:11:56.343
which is the statutory language here.

262
00:11:58.680 --> 00:12:00.327
Just to circle back.

263
00:12:00.327 --> 00:12:02.400
<v ->So, I mean, without consent,</v>

264
00:12:02.400 --> 00:12:05.190
even in the intellectually disabled person,

265
00:12:05.190 --> 00:12:09.753
the defendant has forced himself on the victim, correct?

266
00:12:14.850 --> 00:12:18.120
<v ->Yes, I think that's true,</v>

267
00:12:18.120 --> 00:12:22.410
but not in the way that this court

268
00:12:22.410 --> 00:12:24.870
has defined that statutory phrase.

269
00:12:24.870 --> 00:12:26.343
And so it's not,

270
00:12:26.343 --> 00:12:30.900
the word force has distinct meanings

271
00:12:30.900 --> 00:12:31.977
in different areas of the law.

272
00:12:31.977 --> 00:12:34.770
<v ->The statutory phrase is the 58A phrase-</v>

273
00:12:34.770 --> 00:12:36.840
<v ->Of physical force.</v>
<v ->Of physical force.</v>

274
00:12:36.840 --> 00:12:37.673
<v ->Right, right.</v>

275
00:12:37.673 --> 00:12:41.246
<v ->And I guess the question I have for you</v>

276
00:12:41.246 --> 00:12:44.820
is we have physical force

277
00:12:44.820 --> 00:12:46.650
because of the act of penetration

278
00:12:46.650 --> 00:12:50.130
is part and parcel, was the definition of the crime.

279
00:12:50.130 --> 00:12:53.550
<v ->Well, if yes, so I agree with that,</v>

280
00:12:53.550 --> 00:12:57.510
except to say that the act of penetration

281
00:12:57.510 --> 00:12:59.070
in this Commonwealth,

282
00:12:59.070 --> 00:13:01.980
I cite Commonwealth versus Donlan for this in my brief,

283
00:13:01.980 --> 00:13:05.160
that element is satisfied by evidence of any touching

284
00:13:05.160 --> 00:13:07.260
of the vulva or labia.

285
00:13:07.260 --> 00:13:11.250
And so it's equally true that, you know,

286
00:13:11.250 --> 00:13:13.320
any touching of an incompetent

287
00:13:13.320 --> 00:13:17.250
or an unconscious person's genitalia

288
00:13:17.250 --> 00:13:19.260
constitutes the crime of rape.

289
00:13:19.260 --> 00:13:23.940
And, although extremely offensive

290
00:13:23.940 --> 00:13:27.780
and an enormous affront to that victim's dignity,

291
00:13:27.780 --> 00:13:31.590
that victim's personal integrity, that is not physical force

292
00:13:31.590 --> 00:13:34.050
as this court has defined it under section 58A,

293
00:13:34.050 --> 00:13:36.663
which requires a likelihood of bodily harm.

294
00:13:38.130 --> 00:13:39.840
And when you look at the cases

295
00:13:39.840 --> 00:13:42.507
that talk about common law force and offense of battery.

296
00:13:42.507 --> 00:13:45.630
<v ->The likelihood of bodily harm comes from Vieira?</v>

297
00:13:45.630 --> 00:13:47.580
<v ->I'm sorry?</v>
<v ->That comes from Vieira?</v>

298
00:13:47.580 --> 00:13:49.770
That phrase?
<v ->well it comes from Vieira,</v>

299
00:13:49.770 --> 00:13:52.890
but it traces back through Vieira

300
00:13:52.890 --> 00:13:55.260
to Commonwealth versus Everhart,

301
00:13:55.260 --> 00:13:57.270
Commonwealth versus Colon out of the appeals court,

302
00:13:57.270 --> 00:13:59.130
which takes it from Commonwealth versus-

303
00:13:59.130 --> 00:14:01.410
<v ->Those are all the ACC cases.</v>
<v ->From the United States</v>

304
00:14:01.410 --> 00:14:02.680
versus Johnson, yes.
<v ->But those are all</v>

305
00:14:02.680 --> 00:14:05.250
the ACC cases, right?
<v ->Yes, from the ACC cases.</v>

306
00:14:05.250 --> 00:14:06.821
Where we use-
<v ->Which that statute uses-</v>

307
00:14:06.821 --> 00:14:08.310
<v ->Which is a modified categorical.</v>

308
00:14:08.310 --> 00:14:10.593
<v ->That statute uses identical language.</v>

309
00:14:12.204 --> 00:14:13.890
And so I did wanna address

310
00:14:13.890 --> 00:14:17.100
this modified categorical approach question.

311
00:14:17.100 --> 00:14:19.500
<v ->Right, but isn't there a distinction</v>

312
00:14:19.500 --> 00:14:20.760
between using the modified,

313
00:14:20.760 --> 00:14:21.960
I know this is obviously the distinction

314
00:14:21.960 --> 00:14:23.640
between modified, categorical.

315
00:14:23.640 --> 00:14:24.960
It was modified or categorical

316
00:14:24.960 --> 00:14:27.570
you probably wouldn't be standing here, actually,

317
00:14:27.570 --> 00:14:31.800
but if you're saying the definition of force

318
00:14:31.800 --> 00:14:34.000
is going to be the same in the ACC situation

319
00:14:35.177 --> 00:14:39.210
and 58A under, whether you use categorical

320
00:14:39.210 --> 00:14:41.820
or modified categorical.
<v ->But in the ACC context,</v>

321
00:14:41.820 --> 00:14:45.390
this court has said that we can look beneath the indictment.

322
00:14:45.390 --> 00:14:47.250
<v ->Right.</v>
<v ->Beneath the charged offense</v>

323
00:14:47.250 --> 00:14:51.030
to see what actually were the nature of the elements

324
00:14:51.030 --> 00:14:53.880
that were proved to the jury in the prior crime.

325
00:14:53.880 --> 00:14:55.470
<v ->I'm just wondering-</v>
<v ->Whereas-</v>

326
00:14:55.470 --> 00:14:58.500
<v ->If we're bound by the ACC cases</v>

327
00:14:58.500 --> 00:14:59.760
and the definition of force,

328
00:14:59.760 --> 00:15:02.610
because they allow for the modified categorical.

329
00:15:02.610 --> 00:15:04.860
<v ->Well, I think that the court</v>

330
00:15:04.860 --> 00:15:07.140
has very expressly adopted that definition

331
00:15:07.140 --> 00:15:09.150
in Scione and in Vieira.

332
00:15:09.150 --> 00:15:11.370
And there was actually

333
00:15:11.370 --> 00:15:14.760
an extensive discussion of this in both of those cases,

334
00:15:14.760 --> 00:15:17.430
where the court says this is the same language,

335
00:15:17.430 --> 00:15:19.887
there's no reason to think that the legislature meant it

336
00:15:19.887 --> 00:15:21.212
to mean anything different.
<v ->But you pointed out that,</v>

337
00:15:21.212 --> 00:15:23.910
that those cases are not this case.

338
00:15:23.910 --> 00:15:28.050
Scione is not about, doesn't have the same facts.

339
00:15:28.050 --> 00:15:30.400
So, we were not looking at

340
00:15:31.920 --> 00:15:35.640
an expanded definition of force and whether or not

341
00:15:35.640 --> 00:15:38.340
that was the same as, you know, ACC.

342
00:15:38.340 --> 00:15:41.100
Just to be clear.
<v ->Yes, yes, of course.</v>

343
00:15:41.100 --> 00:15:43.590
But the point being that

344
00:15:43.590 --> 00:15:47.730
this incongruity does not arise

345
00:15:47.730 --> 00:15:49.710
from this court's understanding

346
00:15:49.710 --> 00:15:52.470
of what that statutory language means.

347
00:15:52.470 --> 00:15:55.200
It arises from the fact that a substantial portion

348
00:15:55.200 --> 00:15:57.660
of the statute as enacted by the legislature

349
00:15:57.660 --> 00:15:59.400
has been struck down.

350
00:15:59.400 --> 00:16:03.990
And so you have the legislature enacts the statute that says

351
00:16:03.990 --> 00:16:06.060
any felony offense that has as an element

352
00:16:06.060 --> 00:16:07.590
the use, attempted use, or threatened use

353
00:16:07.590 --> 00:16:09.600
of physical force against the person of another

354
00:16:09.600 --> 00:16:13.350
or any other offense that presents a substantial risk

355
00:16:13.350 --> 00:16:14.670
that such force may result.

356
00:16:14.670 --> 00:16:17.470
<v ->Your argument is basically this was a residual clause.</v>

357
00:16:18.540 --> 00:16:20.223
<v ->Yes, and in fact, most-
(indistinct)</v>

358
00:16:20.223 --> 00:16:22.530
Most cases are residual clause cases.

359
00:16:22.530 --> 00:16:25.050
The force clause is extremely narrow,

360
00:16:25.050 --> 00:16:27.960
and particularly in a jurisdiction like Massachusetts

361
00:16:27.960 --> 00:16:30.720
where so many offenses are common law offenses

362
00:16:30.720 --> 00:16:33.930
that adopt a misdemeanor common law definition

363
00:16:33.930 --> 00:16:36.120
of the word force.

364
00:16:36.120 --> 00:16:38.190
So, if you take Commonwealth versus Mora,

365
00:16:38.190 --> 00:16:40.710
which is another ACC case out of this court,

366
00:16:40.710 --> 00:16:42.180
that's a robbery case.

367
00:16:42.180 --> 00:16:43.860
And you see the statutory language

368
00:16:43.860 --> 00:16:46.890
under Chapter 265 Section 19,

369
00:16:46.890 --> 00:16:49.620
punishes anyone who robs another by force and violence

370
00:16:49.620 --> 00:16:51.480
or by assault and putting in fear.

371
00:16:51.480 --> 00:16:54.180
This court says that is not categorically

372
00:16:54.180 --> 00:16:56.520
a forcible crime under the force clause,

373
00:16:56.520 --> 00:16:58.410
because it's possible to commit it

374
00:16:58.410 --> 00:17:01.050
without that type of force that requires,

375
00:17:01.050 --> 00:17:03.870
you know, the type of force that will cause bodily harm,

376
00:17:03.870 --> 00:17:07.470
because the example in that case is a purse snatching

377
00:17:07.470 --> 00:17:09.480
that occurs, you know, before the victim

378
00:17:09.480 --> 00:17:11.040
is even aware of it.

379
00:17:11.040 --> 00:17:13.920
And so that is force within the common law definition

380
00:17:13.920 --> 00:17:16.350
because you've touched the other person,

381
00:17:16.350 --> 00:17:17.670
but it's not physical force

382
00:17:17.670 --> 00:17:19.620
within the meaning of section 58A,

383
00:17:19.620 --> 00:17:23.310
even though robbery clearly is a violent crime,

384
00:17:23.310 --> 00:17:25.950
a crime of force at common law.

385
00:17:25.950 --> 00:17:28.710
But that's not what the legislature meant,

386
00:17:28.710 --> 00:17:30.660
and it works in both directions, right?

387
00:17:30.660 --> 00:17:33.030
Just because the statute says the word force

388
00:17:33.030 --> 00:17:34.740
doesn't necessarily mean it qualifies

389
00:17:34.740 --> 00:17:36.870
under the force clause in Section 58A,

390
00:17:36.870 --> 00:17:39.960
but just because the statute doesn't use the word force

391
00:17:39.960 --> 00:17:42.780
doesn't necessarily mean it doesn't qualify.

392
00:17:42.780 --> 00:17:47.670
So if you take Chapter 265 Section 14 or 15,

393
00:17:47.670 --> 00:17:49.920
assault with intent to murder,

394
00:17:49.920 --> 00:17:52.050
that statute doesn't use the word force,

395
00:17:52.050 --> 00:17:55.410
but it clearly does have as an element

396
00:17:55.410 --> 00:17:57.810
the attempted use of physical force

397
00:17:57.810 --> 00:17:59.100
against the person of another,

398
00:17:59.100 --> 00:18:01.680
because the definition of an assault

399
00:18:01.680 --> 00:18:03.630
is an attempted use of force.

400
00:18:03.630 --> 00:18:06.750
And the intent to murder clearly requires it

401
00:18:06.750 --> 00:18:09.720
to be force of the type that is likely

402
00:18:09.720 --> 00:18:11.490
to result in bodily injury.

403
00:18:11.490 --> 00:18:14.190
And so there's nothing magic about the word force here.

404
00:18:14.190 --> 00:18:16.110
You have to look beneath that word

405
00:18:16.110 --> 00:18:18.000
and see what does the element

406
00:18:18.000 --> 00:18:19.680
actually require the Commonwealth

407
00:18:19.680 --> 00:18:22.053
to prove in the least case.

408
00:18:25.680 --> 00:18:27.363
If there are no more questions,

409
00:18:28.560 --> 00:18:30.030
I would just ask the court

410
00:18:30.030 --> 00:18:32.670
to reverse the single justice's order

411
00:18:32.670 --> 00:18:35.311
and remand the case for a new bail hearing.

412
00:18:35.311 --> 00:18:37.440
<v ->Okay, thank you very much.</v>

413
00:18:37.440 --> 00:18:38.453
<v Attorney Levin>Thank you.</v>

414
00:18:41.610 --> 00:18:43.620
<v ->Okay, Attorney Lewis.</v>

415
00:18:43.620 --> 00:18:45.120
<v ->Good morning, are we still morning?</v>

416
00:18:45.120 --> 00:18:48.510
Your Honors, Sarah Lewis on behalf of the Commonwealth.

417
00:18:48.510 --> 00:18:51.000
With me today is the trial prosecutor on the case,

418
00:18:51.000 --> 00:18:53.274
Assistant District Attorney Lynn Feigenbaum.

419
00:18:53.274 --> 00:18:56.410
<v ->I was a bit confused by your brief when you said that</v>

420
00:18:58.500 --> 00:19:00.090
the other side of the defendant

421
00:19:00.090 --> 00:19:04.110
was not using the categorical approach.

422
00:19:04.110 --> 00:19:06.240
I thought, as we laid it out,

423
00:19:06.240 --> 00:19:08.610
or I laid it out to start, you know,

424
00:19:08.610 --> 00:19:10.740
my example of the assault and battery,

425
00:19:10.740 --> 00:19:13.380
the punch in the face versus the window shard,

426
00:19:13.380 --> 00:19:15.330
and then we have rape, which, you know,

427
00:19:15.330 --> 00:19:18.430
at one extreme is a stranger rape the other extreme

428
00:19:19.590 --> 00:19:21.720
would be constructive force incapacitated victim.

429
00:19:21.720 --> 00:19:25.350
I thought we'd go to just like the window shard case,

430
00:19:25.350 --> 00:19:27.910
we go to incapacitated victim constructive force.

431
00:19:27.910 --> 00:19:29.073
Isn't that true?

432
00:19:30.360 --> 00:19:32.580
<v ->I would respectfully disagree insofar as</v>

433
00:19:32.580 --> 00:19:35.880
the categorical approach does not look at the facts

434
00:19:35.880 --> 00:19:37.410
and circumstances of the case.

435
00:19:37.410 --> 00:19:39.090
<v ->Right, so we go to the crime</v>

436
00:19:39.090 --> 00:19:43.470
and we say, how could this be committed

437
00:19:43.470 --> 00:19:44.700
basically almost in the light

438
00:19:44.700 --> 00:19:46.920
most favorable to the defendant?

439
00:19:46.920 --> 00:19:51.000
<v ->And my understanding of the categorical approach</v>

440
00:19:51.000 --> 00:19:53.400
is that we look at the elements of the offense.

441
00:19:53.400 --> 00:19:57.510
Here, one of the elements being the use of force.

442
00:19:57.510 --> 00:20:01.470
If we dive deeper into how that force is proved-

443
00:20:01.470 --> 00:20:02.460
<v ->Okay, so we-</v>
<v ->That seems to go</v>

444
00:20:02.460 --> 00:20:04.830
to the modified categorical approach,

445
00:20:04.830 --> 00:20:06.450
as to looking on the face,

446
00:20:06.450 --> 00:20:08.070
what the elements of the crime are.

447
00:20:08.070 --> 00:20:09.000
<v ->I'm not so sure about that.</v>

448
00:20:09.000 --> 00:20:10.800
So if we look, go to Scione for a second,

449
00:20:10.800 --> 00:20:11.700
right?
<v ->Yep.</v>

450
00:20:11.700 --> 00:20:14.550
<v ->So we have rape of child,</v>

451
00:20:14.550 --> 00:20:19.127
and I'm sure Ms. Feigenbaum, and actually myself,

452
00:20:20.400 --> 00:20:22.830
have prosecuted rape or child cases where

453
00:20:22.830 --> 00:20:24.293
you charge rape of child,

454
00:20:25.290 --> 00:20:27.450
and it's an egregious, you know,

455
00:20:27.450 --> 00:20:29.806
they're all bad, but it's an egregious rape,

456
00:20:29.806 --> 00:20:31.440
but you just can't prove force.

457
00:20:31.440 --> 00:20:35.700
So you would charge rape of child, you know,

458
00:20:35.700 --> 00:20:38.883
sometimes offensively called statutory rape, but still rape.

459
00:20:40.440 --> 00:20:42.330
But it also could be committed

460
00:20:42.330 --> 00:20:45.630
by the two consensual 15-year-olds.

461
00:20:45.630 --> 00:20:48.750
So that's why we look at the two 15-year-olds

462
00:20:48.750 --> 00:20:53.190
having consensual sex, not the father molesting the child.

463
00:20:53.190 --> 00:20:56.700
<v ->And in Escobar, I think we said an offense</v>

464
00:20:56.700 --> 00:20:59.100
is a predicate offense under the force clause

465
00:20:59.100 --> 00:21:01.710
if and only if the elements of the offense

466
00:21:01.710 --> 00:21:04.530
always fall within the ambit of the force clause.

467
00:21:04.530 --> 00:21:06.600
<v ->Right, so I don't get your analysis</v>

468
00:21:06.600 --> 00:21:08.070
about why that's modified.

469
00:21:08.070 --> 00:21:11.730
<v ->So, first, statutory rape doesn't have</v>

470
00:21:11.730 --> 00:21:14.310
as an element the use of force.

471
00:21:14.310 --> 00:21:19.310
So the question in Scione, in my understanding,

472
00:21:19.950 --> 00:21:22.770
was to look at whether it necessarily still involves

473
00:21:22.770 --> 00:21:24.630
the use of physical force,

474
00:21:24.630 --> 00:21:28.140
because it didn't have as an element the use of force.

475
00:21:28.140 --> 00:21:31.140
Rape has as an element the use of force.

476
00:21:31.140 --> 00:21:34.497
But even if this court disagrees with the common-

477
00:21:34.497 --> 00:21:38.010
<v ->But the force in rape can be accomplished</v>

478
00:21:38.010 --> 00:21:40.940
through constructive force and/or

479
00:21:40.940 --> 00:21:42.990
an incapacitated victim, correct?

480
00:21:42.990 --> 00:21:45.540
<v ->Yes, and I would suggest that those</v>

481
00:21:45.540 --> 00:21:47.070
are looking to the facts,

482
00:21:47.070 --> 00:21:48.450
and that's looking to the facts

483
00:21:48.450 --> 00:21:49.650
and circumstances of the case.

484
00:21:49.650 --> 00:21:51.690
But even if it's not-
<v ->No, it's looking at</v>

485
00:21:51.690 --> 00:21:53.700
whether it falls within the ambit

486
00:21:53.700 --> 00:21:56.580
of the use of force in the least of it.

487
00:21:56.580 --> 00:22:00.715
<v ->And if that's true, then I think irrespective</v>

488
00:22:00.715 --> 00:22:04.860
of the use of force element of rape,

489
00:22:04.860 --> 00:22:06.420
as Your Honors were suggesting,

490
00:22:06.420 --> 00:22:09.750
rape, the other elements penetration

491
00:22:09.750 --> 00:22:11.880
with a non-consenting adult

492
00:22:11.880 --> 00:22:15.120
also satisfies the force clause of 58A,

493
00:22:15.120 --> 00:22:18.390
because that necessarily involves physical force,

494
00:22:18.390 --> 00:22:19.223
so I think there are-
<v ->'Cause you have to</v>

495
00:22:19.223 --> 00:22:21.000
take the crime as a totality,

496
00:22:21.000 --> 00:22:22.980
'cause just as Mr. Levin said,

497
00:22:22.980 --> 00:22:24.390
you can't just focus on the elements.

498
00:22:24.390 --> 00:22:27.510
'Cause sometimes that element of force isn't there.

499
00:22:27.510 --> 00:22:30.117
We look at the against the will part of it

500
00:22:30.117 --> 00:22:31.920
and the act of physical penetration.

501
00:22:31.920 --> 00:22:35.880
<v ->Yes, and I understand that the use of force can be,</v>

502
00:22:35.880 --> 00:22:37.800
that this court is interpreted it as

503
00:22:37.800 --> 00:22:41.433
it can be satisfied by constructive force,

504
00:22:43.050 --> 00:22:48.050
but the penetration together with lack of consent

505
00:22:48.120 --> 00:22:49.260
also satisfies

506
00:22:49.260 --> 00:22:50.907
the force clause of 58A.
<v ->Constructive force,</v>

507
00:22:50.907 --> 00:22:52.680
and I think I've heard some,

508
00:22:52.680 --> 00:22:53.850
I was looking at them this morning,

509
00:22:53.850 --> 00:22:55.470
there's an appeals court case where

510
00:22:55.470 --> 00:22:58.030
a police officer, you know, in uniform

511
00:22:59.490 --> 00:23:01.387
takes a motorist into the cruiser and says,

512
00:23:01.387 --> 00:23:03.690
"Hey," and rapes them,

513
00:23:03.690 --> 00:23:07.477
and the motorist female says,

514
00:23:07.477 --> 00:23:09.967
"I didn't say anything but I was petrified,

515
00:23:09.967 --> 00:23:13.023
"and he's using his authority as a police officer,

516
00:23:15.127 --> 00:23:17.070
"to accomplish against her will,"

517
00:23:17.070 --> 00:23:18.750
even though she didn't say anything.

518
00:23:18.750 --> 00:23:21.120
And was again petrified and didn't,

519
00:23:21.120 --> 00:23:22.740
that's constructive force, correct?

520
00:23:22.740 --> 00:23:24.900
<v ->Yes, and I believe you're referring to,</v>

521
00:23:24.900 --> 00:23:27.030
and I may be not pronouncing it correctly,

522
00:23:27.030 --> 00:23:28.901
but Caracciola.
<v ->Yeah.</v>

523
00:23:28.901 --> 00:23:31.170
<v ->And I actually think that case is very instructive here,</v>

524
00:23:31.170 --> 00:23:32.520
because what the court,

525
00:23:32.520 --> 00:23:34.470
from my understanding was suggesting,

526
00:23:34.470 --> 00:23:37.050
was that the use of force element of rape

527
00:23:37.050 --> 00:23:41.580
would be superfluous if it wasn't interpreted

528
00:23:41.580 --> 00:23:44.760
as allowing for more than just physical force.

529
00:23:44.760 --> 00:23:46.890
Superfluous because rape,

530
00:23:46.890 --> 00:23:50.040
penetration with a non-consenting adult,

531
00:23:50.040 --> 00:23:51.540
constitutes physical force.

532
00:23:51.540 --> 00:23:52.890
Therefore, if we're going to add,

533
00:23:52.890 --> 00:23:55.380
the legislature adds this additional element

534
00:23:55.380 --> 00:23:58.620
of use of force, the court interpreted it

535
00:23:58.620 --> 00:24:01.320
as allowing more than just physical force,

536
00:24:01.320 --> 00:24:04.590
constructive force, duress, threats, fear.

537
00:24:04.590 --> 00:24:08.970
But that doesn't take rape out of the force clause of 58A,

538
00:24:08.970 --> 00:24:12.630
because you have these two other elements of penetration

539
00:24:12.630 --> 00:24:14.130
and lack of consent.

540
00:24:14.130 --> 00:24:18.030
<v ->Yeah, and I've, this is Commonwealth versus Mayana,</v>

541
00:24:18.030 --> 00:24:23.030
103 Mass Appeals Court, 1104 rescript, recent case,

542
00:24:23.257 --> 00:24:25.477
"Constructive force exists where the defendant's words

543
00:24:25.477 --> 00:24:27.997
"or conduct create an intimidating environment

544
00:24:27.997 --> 00:24:29.377
"which instills fear in the victim,

545
00:24:29.377 --> 00:24:31.287
"compelling the victim to submit."

546
00:24:32.220 --> 00:24:35.100
Right, so you say that plus

547
00:24:35.100 --> 00:24:36.930
the element of against the will

548
00:24:36.930 --> 00:24:39.810
plus the element of penetration equals force.

549
00:24:39.810 --> 00:24:41.790
<v ->Yes, I do.</v>

550
00:24:41.790 --> 00:24:44.116
<v ->Equals, well, does it-</v>
<v ->Physical force.</v>

551
00:24:44.116 --> 00:24:47.100
<v ->How does it equal physical force based on</v>

552
00:24:47.100 --> 00:24:50.400
the definition, I guess in Vieira?

553
00:24:50.400 --> 00:24:53.490
<v ->And that's the other point I wanted to turn to.</v>

554
00:24:53.490 --> 00:24:58.320
I disagree that the court adopted the ACC definition

555
00:24:58.320 --> 00:25:00.240
of physical force in Vieira.

556
00:25:00.240 --> 00:25:04.110
What the court said was that

557
00:25:04.110 --> 00:25:09.110
the force clause of 58A mirrors how violent crime

558
00:25:09.540 --> 00:25:13.620
or a violent offense is defined under the ACC,

559
00:25:13.620 --> 00:25:15.513
Federal ACC, Massachusetts ACC,

560
00:25:17.400 --> 00:25:21.030
but it didn't go so far as to adopt the definition

561
00:25:21.030 --> 00:25:24.360
of physical force that the ACC adopts,

562
00:25:24.360 --> 00:25:26.880
or that it has adopted an ACC context.

563
00:25:26.880 --> 00:25:30.300
But what the court did say is that physical force

564
00:25:30.300 --> 00:25:34.477
for the purposes of 58A does not mean, quote,

565
00:25:34.477 --> 00:25:36.607
"The use of force so minimal

566
00:25:36.607 --> 00:25:39.240
"as to encompass an offense of battery."

567
00:25:39.240 --> 00:25:41.190
And I think that's really important.

568
00:25:41.190 --> 00:25:45.630
To hold that rape does not qualify as a predicate offense

569
00:25:45.630 --> 00:25:47.940
under the force clause here,

570
00:25:47.940 --> 00:25:49.950
would equate it then to an offense of battery

571
00:25:49.950 --> 00:25:50.970
in a de minimis touching.

572
00:25:50.970 --> 00:25:53.460
And I think we all know that that's not the case.

573
00:25:53.460 --> 00:25:58.240
So I would disagree that this court adopted that definition

574
00:25:59.720 --> 00:26:03.570
of the force clause in 58A, adopted the definition from ACC,

575
00:26:03.570 --> 00:26:06.690
but even if it does rape would qualify.

576
00:26:06.690 --> 00:26:08.840
<v ->Is this a question of legislative intent?</v>

577
00:26:10.260 --> 00:26:12.240
<v ->Yes, yes.</v>

578
00:26:12.240 --> 00:26:17.130
And the legislative intent of 58A

579
00:26:17.130 --> 00:26:20.430
is to systematically identify those

580
00:26:20.430 --> 00:26:22.350
who may present a danger to society

581
00:26:22.350 --> 00:26:25.500
and to incapacitate them before the danger may be realized.

582
00:26:25.500 --> 00:26:28.200
And the question in this case is a threshold question,

583
00:26:29.041 --> 00:26:33.810
that the scheme of 58A is to identify a predicate offense.

584
00:26:33.810 --> 00:26:36.960
That's not going to say that the court then doesn't move on

585
00:26:36.960 --> 00:26:40.590
to look at the facts and circumstances of the case.

586
00:26:40.590 --> 00:26:43.320
The Commonwealth bears a heavy burden at the hearing

587
00:26:43.320 --> 00:26:46.560
at a 58A hearing to establish dangerousness

588
00:26:46.560 --> 00:26:48.330
by clear and convincing evidence.

589
00:26:48.330 --> 00:26:49.980
The question here-
<v ->But we're talking about</v>

590
00:26:49.980 --> 00:26:52.290
the initial stage where whether

591
00:26:52.290 --> 00:26:55.330
you even get the hearing.
<v ->Exactly, but I was</v>

592
00:26:56.250 --> 00:26:59.610
raising that point to say that it's bifurcated.

593
00:26:59.610 --> 00:27:02.850
The question is, does an offense qualify as a predicate?

594
00:27:02.850 --> 00:27:07.080
And even if it does, there's still another protection

595
00:27:07.080 --> 00:27:09.420
for the defendant to be held pretrial.

596
00:27:09.420 --> 00:27:12.730
<v ->But yet the constitutional overlay of this, of course, is</v>

597
00:27:13.770 --> 00:27:18.770
to be constitutional under Salerno in our case law,

598
00:27:19.380 --> 00:27:21.630
it has to be the worst of the worst.

599
00:27:21.630 --> 00:27:22.500
Correct?

600
00:27:22.500 --> 00:27:24.537
The crimes that you can detain on.

601
00:27:24.537 --> 00:27:27.390
<v ->And a very serious crime.</v>

602
00:27:27.390 --> 00:27:32.390
I will say 58A does not say make a predicate

603
00:27:33.210 --> 00:27:35.970
a violent crime that has as an element

604
00:27:35.970 --> 00:27:39.270
the use, attempted use, or threatened use of physical force,

605
00:27:39.270 --> 00:27:40.103
like the ACC.

606
00:27:40.103 --> 00:27:44.790
It says a felony that has as an element the use,

607
00:27:44.790 --> 00:27:46.650
threatened use, attempted use.

608
00:27:46.650 --> 00:27:48.184
It never-
<v ->That's a distinction</v>

609
00:27:48.184 --> 00:27:50.994
between the ACC and 58A.

610
00:27:50.994 --> 00:27:54.127
<v ->That is a distinction.</v>
<v ->The use of the word violent.</v>

611
00:27:54.127 --> 00:27:55.470
<v ->It is a distinction.</v>

612
00:27:55.470 --> 00:27:59.220
And I think that leads to the definition

613
00:27:59.220 --> 00:28:01.380
of physical force in the context of ACC.

614
00:28:01.380 --> 00:28:06.300
But again, rape is an extreme crime of violence.

615
00:28:06.300 --> 00:28:09.540
So if we do pull from the ACC-

616
00:28:09.540 --> 00:28:10.650
<v ->I mean, it's just like, you know,</v>

617
00:28:10.650 --> 00:28:14.040
but that's what some of the ACC cases say.

618
00:28:14.040 --> 00:28:15.990
And we said in Escobar,

619
00:28:15.990 --> 00:28:17.527
if you ask the person on the street,

620
00:28:17.527 --> 00:28:19.530
"Is rape a violent crime,"

621
00:28:19.530 --> 00:28:21.840
I would think 100% of the people are gonna say yes.

622
00:28:21.840 --> 00:28:26.820
If you said, "Is assault and battery a violent crime?"

623
00:28:26.820 --> 00:28:28.470
99 would say yes.

624
00:28:28.470 --> 00:28:30.330
Very few people would know, of course,

625
00:28:30.330 --> 00:28:31.980
you punch the shard of glass,

626
00:28:31.980 --> 00:28:34.410
and there's a recklessness part of it.

627
00:28:34.410 --> 00:28:38.370
<v ->Right, and I think those distinctions</v>

628
00:28:38.370 --> 00:28:41.370
are relevant in an assault and battery context,

629
00:28:41.370 --> 00:28:44.394
where you're looking at, as Your Honor did in Escobar,

630
00:28:44.394 --> 00:28:47.280
whether it can be committed recklessly and wantonly.

631
00:28:47.280 --> 00:28:52.280
And I think that's different from rape, where a defendant,

632
00:28:53.310 --> 00:28:55.050
it can be proved through defendant

633
00:28:55.050 --> 00:28:57.810
intending the sexual intercourse

634
00:28:57.810 --> 00:29:01.830
with a non-consenting adult by force.

635
00:29:01.830 --> 00:29:05.100
And so you have this element of force,

636
00:29:05.100 --> 00:29:06.810
and irrespective of that element,

637
00:29:06.810 --> 00:29:08.250
you have physical force

638
00:29:08.250 --> 00:29:12.270
because of the penetration with a non-consenting adult.

639
00:29:12.270 --> 00:29:17.270
<v ->If we decide this case in the defendant's favor,</v>

640
00:29:17.700 --> 00:29:22.320
would rape of child with force be a non-detainable offense?

641
00:29:22.320 --> 00:29:25.050
<v ->I would think yes, because...</v>

642
00:29:25.050 --> 00:29:27.840
But that would be against the court statement in Scione.

643
00:29:27.840 --> 00:29:29.250
Very, very-
<v ->I wouldn't</v>

644
00:29:29.250 --> 00:29:30.543
rely on that here,

645
00:29:31.920 --> 00:29:34.110
just because that wasn't what we were focused on.

646
00:29:34.110 --> 00:29:35.310
<v ->And I understand.</v>

647
00:29:35.310 --> 00:29:36.540
I would just point out, though,

648
00:29:36.540 --> 00:29:40.290
that there was a clear statement that forcible rape

649
00:29:40.290 --> 00:29:42.060
of a child does qualify.

650
00:29:42.060 --> 00:29:44.973
And there is also, as I pointed out in our brief,

651
00:29:46.230 --> 00:29:49.950
cases that say that forcible rape of a child

652
00:29:49.950 --> 00:29:52.200
can be committed through constructive force,

653
00:29:52.200 --> 00:29:55.050
because, again, you have these other elements

654
00:29:55.050 --> 00:29:56.730
of penetration and lack of consent,

655
00:29:56.730 --> 00:30:00.300
which is distinct from statutory rape

656
00:30:00.300 --> 00:30:03.963
involving the voluntary participation of two people.

657
00:30:06.150 --> 00:30:07.950
The lack of consent in adult rape

658
00:30:07.950 --> 00:30:09.950
I think is a crucial consideration here.

659
00:30:12.450 --> 00:30:14.760
If Your Honors have no further questions,

660
00:30:14.760 --> 00:30:16.760
the Commonwealth will rest on its brief.