Criminal Heterosexual Speech

Though the title of this post sounds like SEO keyword trolling, it is not. Yesterday, the Massachusetts Supreme Judicial Court released its opinion in Commonwealth v. Sullivan (can be found here).

Mr. Sullivan was found guilty of violating G.L. c. 272, sec. 53, which sets forth the statutory penalty for prostitution as well as “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex”. I’m sure you see where I’m going with this.

Here is the entire fact pattern laid out by the SJC:

At approximately 9:30 p.m. on September 28, 2007, R.M. was walking alone on Massachusetts Avenue in Cambridge. She was returning to her dormitory on the Massachusetts Institute of Technology campus after a Tae Kwon Do class. The operator of a motor vehicle traveling on Massachusetts Avenue, whom R.M. later identified from a photographic array as the defendant, swerved toward her and stopped on the side of the road. R.M. thought that he was going to ask for directions, so she took a step toward the vehicle. The defendant rolled down the window and said, “Hey little girl, you look so tired. Come on over. Talk to me. Let’s, you know, let’s talk.” R.M. described the pitch of his voice as “much higher than his normal tone of [*5] voice, more like, well, what you use to bribe someone.” She stepped back from the vehicle and started walking away because she “didn’t want to have anything to do with that situation.” The defendant then got out of his vehicle while the engine was still running, and he walked toward R.M., asking her to come over and speak with him. R.M. declined to engage him in conversation and attempted to move away. The defendant came closer, causing R.M. to angle her body to avoid touching him. Eventually, R.M. managed to continue on her way, the defendant returned to his vehicle, and he drove away. The encounter, however, did not end there.

Apparently changing his mind about heading toward Boston, the defendant suddenly reversed his direction and followed R.M. in his vehicle as she turned onto Landsdowne Street, which at the time was dimly lit and devoid of other pedestrians. When he caught up to her, the defendant stopped abruptly and got out of his vehicle a second time. With the engine running and the car door open, he approached so closely that R.M. was aware of an unpleasant odor emanating from his body. The defendant sounded angry, and he demanded that R.M. “get in his car.” Although he did [*6] not touch R.M., the defendant made a gesture like he wanted to put his arm around her shoulder and guide her toward his car. At this point, R.M. was “very scared.” She moved away from the defendant, turning sideways on the sidewalk so she could “scootch” between the defendant and a wall that was behind her without touching him. As R.M. walked past the defendant, he started to follow her. R.M. then began reciting to herself the license plate number of the defendant’s vehicle. At that point, the defendant “stormed off,” got into his car, and left the scene. R.M. ran straight to her dormitory feeling “really, really, really scared,” and the police were called.

Mr. Sullivan, properly, was convicted of attempted kidnapping. The only other charge, however, was for accosting or annoying a person of the opposite sex. In short–if R.M. was a man, Mr. Sullivan would not have been guilty of this crime. Given that the facts giving rise to a violation of the statute would generally occur in a sexual harassment situation, homosexual men and women likely would not find themselves in violation.

I’m not a fan of the “accost or annoy” language, as I feel it is too vague for first amendment principles. But, assuming otherwise constitutionally applied, the statute needs amendment. If the people of Massachusetts feel it warrants criminal punishment, then it should mirror other statutes and eliminate the “opposite sex” language or modify to “on account of sex” or some such. It likely could not survive review under Goodridge v. DPH (the marriage case). I must say, I am surprised Mr. Sullivan’s attorney did not argue this issue; a quick review of earlier proceedings did not seem to demonstrate such. Given the attempted kidnapping conviction, I’m not sure Mr. Sullivan could or would raise the argument in the future. Either way, this should be legislatively corrected.

5 Responses to Criminal Heterosexual Speech

  1. David Stretton says:

    Hey, kids! If you liked “Everyone is equal, but some are more equal than others”, you’ll really love our new hit single “This is wrong, but it’s wronger against some than others!”

  2. How about RAV v. St Paul? EPC applies to criminal speech.

    Even so, the MASC wrestled with the issue you raise in another Justice Spina opinion, Commonwealth v. Chou. The court said it would save the statute by excising the offending language:

    “Had the defendant succeeded in a facial attack, a point we need not decide, the provision that he claims offends the equal protection clause and the Massachusetts equal rights amendment could have been struck without sacrificing the integrity and purpose of the statute. . . . The surviving portion of the accost or annoy provision of § 53 would permit criminal convictions of ‘persons who with offensive and disorderly acts or language accost or annoy persons,’ and thus would preserve the legislative intent to punish both men and women for offenses committed against either men or women. Because the surviving statute would have reached the conduct proved here, the defendant would not have benefited from such a ruling.”

    433 Mass. 229, 238-39. Games judges can play. :/

    Last, I empathize with that point you made in passing re: the “accost or annoy” elements, but I’ll stop there so as not to hijack your post.

    • Jay Wolman says:

      Justice Spina’s opinion on the gender issue is dicta. Excising the language would not work, because the SJC cannot criminalize that which the legislature chose not to criminalize. Man on man and Woman on Woman was not criminalized, and it violates due process for the court to make it criminal in the name of equal protection. The entire accost/annoy provision would need to be excised, not merely the gender specification.

      • I totally agree that it’s dicta, but it’s the kind of dicta that future courts will often say was a ruling. I hear you on the substance too–there’s a compelling argument that the new construction broadens the statute, which the court ostensibly cannot do. I personally find that argument convincing and think expanding a criminal statute beyond the plain meaning is bunk. What about the rule of lenity and all that.

        Like I said–games judges play–we saw something like that in our state in the 2003 Courchesne, where Borden’s majority broadened the scope of a statute beyond the plain meaning of the statutory language, relying on what the court considered to be the legislative intent of the statute. There’s a fair argument that Spina’s approach accomplishes something similar–seeking to give power to what the judges think the intended policy was, not what the written language is. I’m skeptical of that approach, and I think striking the whole statute would be the most just course, but I understand the reasoning.

        The accost/annoy language is a common phrase in catch-alls, coming out of the MPC–and you know how much I hate those catch-alls for infringing speech and press rights like the right to record. Every state that I am aware of, including Mass, has applied some narrowing gloss to maintain the legal fiction that the statutes are constitutionally firm from facial first amendment vagueness challenges. You can still raise as-applied challenges, but I don’t think this is the case given the defendant’s physical conduct in conjunction with his speech. That said–in practice, I strongly feel the statutes are vague and applied in abusive ways.

  3. 1231123123 says:

    bad judgement and lawyer or bad judge…. no way is that a kidnapping. Jesus christ. And you say that was ‘correct’……don’t complain about bad laws if you think harrassing someone is ‘kidnapping’ …how did hu fail? by not grabbing her and putting her in the car? His own choice not to grab and put her in the car proves it wasn’t kidnapping. You are a complete idiot and so are the judges and courts.

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