Massachusetts Supreme Judicial Court Reverses Former New Bedford Cop’s Sex Conviction

The Massachusetts Supreme Judicial Court today partially reversed a former New Bedford police officer’s conviction for sexually abusing a young girl and ordered him to be resentenced.  The name of the case is Commonwealth v. Gomes.

The defendant had worked as a New Bedford cop for approximately 32 years.  He had dated the victim’s mother for a decade.  When the victim was eight years old, the defendant sat next to her on a couch in her cousin’s apartment.  The defendant tickled the victim and she ended up sitting on his lap facing away from him.  The defendant grabbed the victim’s waist and thrust his groin into her butt.  He then instructed her not to tell anyone because he would get in trouble.  The victim testified at trial that she had been uncomfortable about the incident, but she didn’t tell anyone about it until two years later.  When the victim’s mother found out what the defendant had done, she filed a police report and the defendant was ultimately charged with indecent assault and battery on a person under the age of 14.  Unfortunately for the defendant, the already-serious charge was made worse by his status as a police officer.  As a cop, the defendant was a “mandated reporter,” which means he had a legal obligation to report the abuse or neglect of children.  A mandated reporter who commits an indecent assault and battery on a child is subject to a mandatory minimum prison sentence of 10 years, which was the sentence imposed upon the defendant following his conviction by a Fall River Superior Court jury.

The defendant advanced two arguments on appeal.  He argued first that the evidence had been insufficient to establish the assault and battery against the victim had been indecent.  Prior cases have defined an indecent touching as one that offends contemporary moral values and standards of decency.  While the defendant and the victim were both fully clothed at the time of the crime, the Supreme Judicial Court concluded the assault clearly satisfied the definition of “indecent,” as the defendant intentionally contacted the victim’s butt with his (clothed) genitals.  The jury’s guilty verdict was accordingly supported by the evidence.

The defendant had better luck with his second argument.  During his trial, he had repeatedly told the judge he should not be subject to an enhanced penalty because while his job as a police officer made him a mandated reporter, he was not working at the time of the assault.  The trial judge concluded that even though he was off-duty when he assaulted the victim, the defendant’s status as a police officer subjected him to the 10-year mandatory minimum prison sentence.  The SJC disagreed.  The Court noted the language of the statute seeks to punish a defendant who was a mandated reporter “at the time of commission” of the indecent assault.  The Court concluded the defendant was not a mandated reporter at the time he committed the crime because at that moment, he was not working as a police officer.  Further, in enacting the mandated reporter statute, the Legislature had made clear that a duty to report abuse or neglect arose only from information learned by an individual in his professional capacity.  Therefore, in this case, the defendant was properly convicted of indecent assault and battery, but the Court reversed so much of the conviction that alleged the defendant was a mandated reporter.

The SJC remanded the case to superior court for the defendant to be resentenced, where he will likely receive a considerably shorter sentence than the 10 years he has been serving.