In an important decision issued yesterday, the Supreme Judicial Court upheld the conviction of a man for accosting a female student from the Massachusetts Institute of Technology as she walked back to campus after her Tae Kwon Do class. The name of the case is Commonwealth v. Joseph Sullivan.
As the victim was returning to her dormitory, the defendant began following her in his car on Massachusetts Avenue in Cambridge. The defendant swerved toward the victim, rolled down his window, and said, “Hey little girl, you look so tired. Come on over. Talk to me. Let’s, you know, let’s talk.” The victim reported that the defendant was using a high tone of voice as if he was trying to bribe her. The victim walked away from the defendant, who then got out of his car and started following her on foot and asking her to speak to him.
The victim continued to move away and was just barely able to avoid touching the defendant, who had walked extremely close to her. The defendant then got back into his car and began following the victim as she turned onto Landsdowne Street, which was dimly lit and empty. The defendant again got out of his car, walked so close to the victim that she could smell his unpleasant body odor, and ordered that she get into his car. The defendant never touched the victim, but made a gesture indicating that he would put his arm around her shoulder and guide her to his car. The victim, who testified that she was “really, really, really scared,” again walked away from the defendant, who followed her for a short time before finally leaving the scene in his car.
The defendant was charged with attempted kidnapping and a Massachusetts statute that prohibits annoying or accosting a person of the opposite sex by using “offensive and disorderly acts or language.” The Massachusetts Appeals Court reversed the accosting conviction, reasoning that because neither the defendant’s acts nor language were “sexually explicit,” his conduct could not be labeled “offensive” pursuant to the statute. The Supreme Judicial Court reversed the Appeals Court’s decision and reinstated the defendant’s conviction for accosting.
The SJC began its analysis by noting that the law requires the prosecutor to prove beyond a reasonable doubt that the defendant’s acts or language are both “offensive” and “disorderly.” An act is offensive, according to the SJC, if it causes displeasure, anger, or resentment, and is repugnant to the prevailing sense of what is moral or decent, and an offensive act is required to be sexual in nature. The Court found that the defendant’s conduct and language in this case could be construed as implicitly suggesting that a sexual assault was imminent. By following the victim, who he called “little girl,” and getting so close to her that she could smell him while he demanded that she get into his car, the defendant reasonably placed the victim in fear that he was preparing to sexually assault her.
Disorderly conduct includes a variety of acts, including those which create a hazardous or physically offensive condition for no legitimate purpose. The Court ruled that the Commonwealth also had proven this element beyond a reasonable doubt by establishing that the defendant’s proximity to the victim was inappropriately close, his language was threatening, and he placed the victim in extreme fear by following her. Therefore, while the defendant never touched the victim, his actions and language implicitly threatened a sexual assault in a disorderly way and the defendant was properly convicted of annoying or accosting a person of the opposite sex. A conviction for this offense has a particularly damaging potential collateral consequence. The accosting statute can be a qualifying offense for an individual to be indefinitely civilly committed as a sexually dangerous person in Massachusetts.