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.