Massachusetts criminal defense Attorney Blog
Aggressive Defense of All Criminal Matters
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I was browsing the web earlier today and saw a CBS News article about the “thrill kill” that happened last week. The article mentioned that one of the accused tweeted about killing someone, three days before he supposedly committed this crime. He tweeted under a handle @Jamesakabug. This particular defendant also tweeted about being a thug and about Firearms. Even though the tweets were not addressed towards any individual victim you can be sure the district attorney will fight to have them admitted as evidence. In Massachusetts there is no doubt in my mind that most judges would permit the prosecution to introduce this as evidence. Massachusetts Appellate Courts have ruled that in cases involving Firearms, a person’s statement about guns, can in many contexts be admissible to show that this person had familiarity with Firearms. While the statement will likely be admitted with a limiting instruction the damage is still done.

This is not an isolated case in which a criminal defendant published something on social media. On August 9th of this year the Bradenton Herald published an article about a Miami man who posted details about killing his wife on Facebook. Just two days ago police in Long Island were able to charge a man for Statutory Rape after seizing Facebook posts between the twenty five year old man and his thirteen year old girlfriend. Some Ohio high school football players got themselves in some hot water after posting a video and pictures of a girl who, while passed out had been the victim of a Sexual Assault and possibly a Rape on Twitter, Instagram and Facebook. A man from Hawaii had a drinking and driving posted showing him having a beer while driving and talking to a camera for five minutes.

As a Massachusetts Criminal Lawyer I see more and more evidence being used against my clients that stemmed from their ill-advised posts. There is however much more to this rising trend. I have some clients who have been framed by social media posts. How does this happen? Well in this case the damaging posts were created with my client’s cell phone. Most people now carry smart phones, especially young people. They all have Facebook, Instagram, Twitter and Google+ apps. They leave these apps in a “signed in” mode. Anyone who accesses one of these phones can go right to the app and post as if it were the person who owned the social media page making the comment. In several of these cases witnesses were located and provided the defense with evidence of sabotaging the social media pages. Here is how else social media confessions can help the defense. There are people other than the accused who take credit for the commission of the crime. Their admission is admissible evidence at trial and if there exists some corroboration of the statement a jury might believe that confession credible evidence favoring the defense. Also, witnesses sometimes boast about their value to one side or another through social media outlets. The bottom line is this; social media now plays a significant role in Massachusetts Criminal Defense strategy, a role that should be embraced by the defense.

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Any Criminal Lawyer in Massachusetts will tell you that you don’t want your case to be prosecuted in the Federal Court. There is a litany of reasons why. Federal prosecutors have a limited ability to negotiate pleas. They have numerous channels they must go through to get approval to “amicably” resolve cases. In some cases they need authority from Washington, D.C. The laws in many state are often more pro-defendant in state courts than they are in the federal courts. In Massachusetts for example Article 14 of the Massachusetts Declaration of Rights provides greater protections than its counterpart, the Fourth Amendment to the United States Constitution. Article 12 is viewed more favorably by the defense than the Fifth Amendment. More time is permitted in state court for trial preparation than in federal court. And, for the most part, sentencing schemes in the federal court system are much more rigid and severe than in state courts. Judges in federal courts lack the discretion vested in state court judges to impose sentences that they deem fair and the result is often a huge sentence drastically disproportionate to the crime charged. Here is a look at that sentiment in the context of a Federal Child Pornography Distribution Case.

Lets assume that the client, John Doe is caught in Possession of Child Pornography using peer to peer file sharing. Lets further assume that John has no criminal record. John will be charged with Distribution of Child Pornography. In federal court that charge carries a minimum mandatory five-year sentence. Now in Massachusetts the same crime carries a ten-year minimum mandatory sentence but the prosecutors have discretion to reduce that to a possession charge, which they often do. I have never seen a district attorney ask for the ten-year sentence for a first time offender with no criminal record. Rarely will state prosecutors even ask for a five-year sentence on the possession whereas the federal prosecutors will not go below the five-year minimum mandatory. So, difference number one is the ability to negotiate a better result for your client and to get below the dreaded minimum mandatory required by federal law. Difference number two involves the federal sentencing guidelines. Still using John Doe and these facts as our example, lets look at factors that will likely result in John getting much more than five years if prosecuted in federal court. John’s base offense level is a 22. Assuming a criminal history category I he is looking at a guideline range of 41-51 months. But this is just the beginning. If the minor(s) in the images are under the age of twelve or prepubescent than two levels are added giving a guideline range of 51-63 months. If a computer was used to view the material then add two more levels making the sentence 63-78 months. If there were at least ten images add another two levels making the sentence 78-97 months. This is just the beginning. If sadistic conduct is involved, add four more levels. If there are six hundred or more images add another three levels to these calculations. Keep in mind, most of these images are accessed in large volumes. Six hundred plus images is more the norm than the exception. So now what are we up to? A level 35 which requires a sentence of 168-210 months, or fourteen years to seventeen and one half years. So while John Doe actually may not actually get the 168-210 month sentence you can be sure that the prosecutor will be pushing a sentence much greater than that which a state district attorney would be looking for. This is why it is critical that when hiring a lawyer you make sure that your lawyer has experience in the system where the case is being prosecuted. There are things that can be done to convince judges to impose a just sentence.

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It is now 2013. Just about every American has access of some sort to the Internet. Information flows freely and quickly. Whatever you want to know about is at the tip of your fingers. If you want sports news, just Google it. If you want to know how to fix your car you can Google it. If you need a recipe you can Google it. If you have an ailment you can Google it to try to find out what it is. And of course, if you want legal news just Google it. Even if you are not searching for information it appears on every page of the Internet through advertisements or pop up adds. You can’t escape the overload of information being thrown at you each day. And everyday more and more Criminal Defense Lawyers in Massachusetts and throughout the country are launching websites. And on every criminal law website, somewhere in bold print you will see a message telling you not to talk to the cops. Yet for some reason people choose to ignore this warning. They talk to the police and then get charged with a crime.

Here is what I am talking about. About two years ago a perspective client came into my office with a police report and grand jury minutes. He was charged with Rape. He denied the allegations. The police report said that Jane Doe, a pseudonym showed up at a local police station claiming that she had been raped by this man. It was about 4:00 in the afternoon when she made the report. She told the sexual assault officer that she had a date with the man the night before. She said that the two went out to dinner and then back to her apartment for a drink. Her roommate was awake watching television in an adjoining room. They started to kiss. She then claimed that the man became aggressive and digitally penetrated her. She never told her roommate. The roommate heard nothing. The complainant never went to the hospital. There were no texts between her and the defendant. Just her report to the police. So what happened next? The police went out to visit with the man. He confirmed everything that the woman told the police…except for one thing. He denied that the digital penetration was done without her consent. What? That’s right. He actually admitted to committing a sexual act that if proven to be nonconsensual would leave him with a Felony Sex Crimes Conviction. Had the man not opened his mouth he probably would not have been charged with anything at all. But now, simply because he opened his mouth he faced a Rape Charge.

So how do you handle a situation like this one. The answer is simple. Just shut your mouth. I have never had a client who was able to talk his way out of being charged with a crime. To the contrary, a large percentage of my clients charged with crimes are being charged because they did talk to the police. Keep this in mind. Your silence can never be used against you in court. You have an absolute right to remain silent and no district attorney or other prosecution witness can comment on that silence to a jury. If the police tell you that it is in your best interests to talk and cooperate with them they are lying to you. It is not in your best interests. So please keep your mouth shut.

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A few weeks ago I was reading an article in the Vineyard Gazette reporting the death of a fifty-year old man presumable from a Heroin overdose. According to the report, at 9:00 a.m. the police were called to a home in Oak Bluffs on Martha’s Vineyard, Cape Cod, Massachusetts. There, they a man they believed to have died from a Heroin overdose. A syringe was nearby along with some other Heroin related use paraphernalia. Apparently an informant provided information to the police that the man’s roommate would sell over five hundred bags of heroin per week. The police encountered the roommate that morning and learned that he had just used Heroin and a Class B drug. He was charged with Possession of Heroin, a Class A Substance in Massachusetts. While in the home officers saw additional drug related materials sufficient for them to apply for and obtain a Search Warrant. The execution of the Search Warrant disclosed enough drugs in the home to charge the roommate with Trafficking Heroin. I wondered just how long the man had been dead and what the roommate did after seeing him overdose.

Then today, I read an article about a proposed Minnesota law designed to encourage people to immediately report drug overdoses in exchange for immunity. The bill is being sponsored by a state senator whose daughter died of a drug overdose in 2007. The young woman overdosed on Heroin. Her companion at that time spent about one half hour cleaning up all evidence of Heroin Possession and use. Then he called 911 and reported that he had no idea why she was unconscious. The senator has maintained that if the other person present at the time of the overdose had no fear of consequences he might have reported the overdose in time for the woman to be saved.

Laws such as the one being proposed in Minnesota are known as Good Samaritan laws. They give immunity in some form to people who help people who overdose in their presence. Several states now have Good Samaritan laws. Massachusetts does not have one of this nature. Studies suggest that Good Samaritan laws can save lives. Drug overdose survival depends on who quickly medical assistance is provided. If someone had a heart attack everyone in the room would call 911 in hopes that the person’s life would be saved. Not so with drug overdoses. Drug users who overdose when not along are typically with other drug users or sellers. These people are not quick to call for help. Rather, like the man in Oak Bluffs, or the Minnesota senator’s daughter’s friend, they first try to conceal evidence of their involvement in criminal activity. Some simply walk away from the situation entirely. These laws would encourage people to act immediately and try to save a life rather than first trying to save their own criminal exposure.

The current Good Samaritan laws protect people from prosecution for Possession of Drugs, Possession With the Intent to Distribute small quantities of drugs and low level Distribution of Drugs. They do not protect people engaged in Drug Trafficking activity. As a Massachusetts Criminal Defense Lawyer who has represented hundreds of clients charged with Massachusetts Drug Crimes I would like to see one of these laws passed in Massachusetts.

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Massachusetts lawmakers are close on a bill that, if passed as law will treat seventeen year olds as juveniles. The proposal has passed in the Massachusetts House and Senate and now awaits reconciliation through a conference committee. The governor has drafted a similar law and there is optimism that the bill will be on his desk for approval by the end of the month. As of now, seventeen year olds in Massachusetts are treated as adults when it comes to being charged with committing crimes. It doesn’t matter how severe the offense is nor are the circumstances of the crime considered prior to bringing criminal charges. The current law is simply terrible. Massachusetts is one of only eleven states in the country currently treating seventeen year olds as adults. The federal government treats seventeen year olds as juveniles.

The proposed Massachusetts law would not override the youthful offender law. That statute, Massachusetts General Laws Chapter 119 Section 52 et seq. provides for special treatment for people being prosecuted between the ages of fourteen and seventeen…in certain circumstances. Typically the youthful offender law pertains to crimes committed involving serious bodily harm. Thus, the proposed legislation would have no effect on Massachusetts Violent Crimes or Massachusetts Sex Crimes committed by seventeen year olds.

So as a Massachusetts Criminal Lawyer here is what I see as being wrong with the current law. Seventeen year olds are still kids. They are primarily in high school. They make mistakes. They experiment with alcohol and drugs. They may drink and drive. They will express their curiosity through activities deemed criminal. In addition to being prosecuted by the courts schools have a way of punishing kids for committing these crimes now. They get suspended. They get kicked out of extra-curricular activities or off of their sports teams. Even worse, they get their names and sometimes pictures in the local papers for doing something wrong.

Here is something else. There are over 2900 seventeen year olds prosecuted each year in Massachusetts. These kids might end up criminal records as a result of a single criminal incident. They will have difficulty getting into some colleges. Their applications will be flagged. They will have trouble getting certain jobs. Countless times each year parents of seventeen year olds that I represent express concerns about how certain methods of resolving the case will be viewed by schools or employers. The answer to those questions is not easy. Massachusetts CORI laws permit perspective employers access to criminal histories depending on the nature of the business. For instance, people working with children or in health care are more vulnerable to perspective employer CORI access. And how many seventeen year olds know what they “want to do when they grow up”?

I have more thoughts on the current law. Juvenile detention facilities treat inmates much different from adult facilities. Adult facilities punish and isolate. They do not rehabilitate. They aren’t funded for rehabilitation right now…at least not enough. Juvenile correctional centers educate. They provide counseling services. They offer mental health treatment. They emphasize getting back into society in a productive manner.

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Yesterday I read Douglas Moser’s column in the Lawrence Eagle Tribune about the rise in Heroin use in Massachusetts. The article touched on many aspects of the problem associated with the drug. It talked about overdoses, deaths from Heroin abuse, changes in the demographics of Heroin users and ultimately an increase in Heroin related arrests. As a Massachusetts Criminal Defense Lawyer who has defended hundreds of Heroin cases the timing of this article came as no surprise to me. I have seen a tremendous increase in my business as a result of this problem. It seems like more people than ever are being charged with Heroin Possession, Possession With the Intent to Distribute Heroin, Distribution of Heroin, Trafficking Heroin and Knowingly Being Present Where Heroin is Kept.

As Moser states, people are driving down to Lawrence, Massachusetts from Main and New Hampshire to buy Heroin. Most of the cases I see have resulted from arrests made in Lawrence and Methuen. The people from out of state who get arrested are primarily being charged with Possession of Heroin. The police witness what they presume to be drug transactions. They stake out areas known to them to be associated with drug distribution. The pattern is all too common. A car bearing New Hampshire plates drives around a neighborhood for a few minutes. Some of these areas are in the more desirable parts of the city. The driver and passenger(s) appear to be looking for someone. Then, a car being driven by someone with Massachusetts, usually from Lawrence approaches. The officers observe what they believe to be a drug transaction. They watch the parties part ways and, believing the car with the New Hampshire plates contains the “buyers” a stop is made. Sure enough the cops find the occupant(s) in possession of Heroin and charges are brought. Other times, the amount of Heroin purchased is sufficient to charge Possession With Intent to Distribute Heroin, a Class A substance. Sometimes the officers actually watch the “users” pull over and shoot up. I can’t even count the number of cases I have had where someone was supposedly caught injecting, snorting or smoking Heroin. The “non-users” get charged with Knowingly Being Present Where Heroin is Kept.

The Massachusetts Heroin Trafficking arrests stemming from this scenario pale in comparison to the possession arrests. The reason is simple. Dealers typically do not bring large quantities to street deals. So what sometimes happens is this: the cops cut a deal with the buyers. Usually those who buy quantities over that considered for personal use only. These people work with the police and set up larger transactions where the amount of heroin sought and ultimately seized reaches the trafficking threshold.

Here is what else criminal defense lawyers see as a result of the increase of heroin in Massachusetts. Sex Crimes. It is not unusual for people to Prostitute themselves in order to get drugs. We have also represented people caught in various sex acts, Open and Gross Lewdness or Lewd and Lascivious Conduct, being performed for drugs.

Why the current increase in Heroin related drug crimes? Moser suggest one reason is the increase in OxyContin use. OxyContin is expensive at the street level. So, once a person’s prescription runs out getting the drug can be a financial hardship. Heroin is a cheap alternative that seems to satisfy the addict’s urge.

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There are thousands of articles written each day about the Trayvon Martin case. Most of these pertain to Florida’s self-defense law. The general consensus among criminal defense lawyers is that the evidence supported a self-defense instruction and that the jury’s application of the law was fair. At least this is how I read these articles and blog posts. While many people are criticizing the Florida “stand your ground” law I saw a post from a Rhode Island criminal lawyer suggesting that in that state Mr. Zimmerman likely would have been acquitted. I will not opine on what would have happened in Massachusetts had the case been tried here. However I thought this would be a good opportunity to discuss the Massachusetts self-defense law from the perspective of a Massachusetts Criminal Defense Lawyer.

Self-defense is permitted is Massachusetts. The defendant does not have to prove that he acted in self-defense. Rather, the district attorney must prove beyond a reasonable doubt that the accused did not act in self-defense. The application of this law depends on whether the defendant used deadly force or non-deadly force. Since we are discussing the law in the context of the Trayvon Martin case let’s look at the use of deadly force. For that defense to work the accused must “reasonable and actually believe” that he was in imminent danger of death or great bodily harm. He must also do everything he can to avoid combat before he uses such force. Finally, one can only use as much force as is necessary under the circumstances.

So here is what I think the jury may have focused on had this case been tried in Massachusetts. 1) Were Trayvon Martin’s actions enough to permit a person in George Zimmerman’s position to reasonably believe that Zimmerman was in immediate danger of death or great bodily harm? 2) Was George Zimmerman able to escape safely without using deadly force? Could he have walked away? Could he have held Trayvon Martin at bay? Could he have called for help without exposing himself to further danger? 3) Did George Zimmerman use more force than was necessary under the circumstances? Factors to consider here are the size differences between the parties, the location of the event, the presence of weapons and who had what weapon.

Here are some other factors that may come into play in Massachusetts self-defense cases. The victim’s prior acts or crimes of violence may be admissible if there exists a dispute as to who was the first aggressor. There is no need for the defendant to know about the victim’s reputation for violence to avail oneself of this defense. That knowledge, if present however can be used as evidence at trial.

Even though Massachusetts does not characterize its self-defense law as a “stand your ground” law its application in the circumstances of particular cases might not differ much or even at all. From what I know about the Trayvon Martin case George Zimmerman would have secured a self-defense instruction in Massachusetts. The jury’s decision would have been driven by facts identical to those adduced in Florida at the very least. There is no reason to believe that the verdict here would have been different from the verdict in Florida. That being said, each jury is unique. It is impossible to predict a verdict. As I tell my clients, anything can happen at trial.

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This past Friday morning police in Oak Bluffs police were called to a location on a report of a dead body. When they arrived they went to a bedroom where they observed the body of a fifty year old man. Based on the presence of Drug Paraphernalia including baggies and a syringe officer believed that the man may have died of a drug overdose. The deceased’s roommate, Mathew Hubert was at the scene. Police reported that Hubert would obtain five hundred bags of Heroin from a source in western Massachusetts and would sell them at the cape. Hubert was immediately arrested when officers found a Class B drug and some Heroin in Hubert’s room. The police then secured a Search Warrant. They executed the warrant at the home and found evidence sufficient to file a criminal complaint for Trafficking Heroin, a Class A substance.

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Massachusetts Heroin Trafficking Defense Attorney

Cape Cod Massachusetts Drug Defense Lawyer

Here is something that immediately crosses my mind when reading this article. Absent a statement from the suspect, Mr. Hubert, how do the police know that he is in fact the person who was trafficking drugs as opposed to his deceased roommate? The simple answer is that the police do not. Both the decedent and Hubert used heroin. The police arrived at the home after receiving a call about a dead body. They were not at that time investigating heroin trafficking. It appears that the only evidence that the police have relative to Hubert and drugs is his admission that he had used heroin a couple of hours earlier and that there were drugs in his room at the time of his arrest. The quantity of those drugs led authorities to charge him with possession, not trafficking. Presumably, the trafficking charges stem from items located during the execution of the Search Warrant. These items can be attributed to Hubert’s roommate as easily as they can to him. I am curious to see whether or not these charges can survive a challenge on the basis of their sufficiency.

To prove Heroin Trafficking in Massachusetts the prosecution must prove beyond a reasonable doubt that Hubert 1) possessed Heroin, 2) that he did so with the intent to distribute the substance and 3) that the weight of the Heroin satisfied the threshold required for Trafficking. Here, there is no indication that Hubert was the person who intended to sell the material, nor did the substance found appear to reach the necessary weight to charge Trafficking Heroin. The evidence against Hubert is equally applicable to the roommate under these circumstances. Both use heroin. With heroin use often comes heroin sales so that the user can support his habit. The informant’s information will not likely be admissible at trial unless that person can provide information corroborating the theory that what the police found belonged to Hubert and was to be sold. I can see many scenarios where this case does not get prosecuted for anything more than simple Possession of Heroin.

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According to a recent report, Alexander Bradley, one of Aaron Hernandez’s friends has testified before a Bristol County grand jury. Bradley is the “friend” whom Hernandez allegedly shot in the face in Florida this past February. Bradley is also the friend who was driving drunk with Hernandez in the car this past January. There are no criminal charges pending against Hernandez stemming from the Florida shooting.

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Boston, Massachusetts Criminal Lawyer, Fifth Amendment Issues

Massachusetts Criminal Defense Lawyer, Grand Jury Proceedings

This article made me thing about the grand jury process in Massachusetts and how it works. As a Massachusetts Criminal Lawyer I frequently challenge the integrity of the grand jury process hoping to get cases dismissed. Often however I ignore the mechanics of these proceedings, something worthy of discussion. For the most part, people are summonsed at random each month to serve on a grand jury. Out of the total called to court twenty-three people sit for a period of months. The number of months during which they serve varies from county to county. The grand jury does not meet every day. The impaneled jurors are given an oath. They then elect someone to act as the foreperson of the grand jury. The foreperson is empowered to administer oaths to the witnesses who are to testify before the grand jury. In Massachusetts witnesses who appear before a grand jury can have an attorney present with them.

Initially at least the grand jury process is done in secret. The grand jurors hear evidence presented by the district attorney through witnesses. The evidence must satisfy the elements of the crime and establish the identify of the accused. The standard of proof necessary to return an indictment is “probable cause”, the lowest standard of proof in the American legal system for criminal matters. The indictment once returned may be held until the arrest of the defendant. To secure an indictment there must be the agreement of at least twelve of the grand jurors. The grand jury can also “no bill” a case. This means that it has not secured the necessary twelve votes to indict. Anyone held in custody while waiting for a grand jury to hear the case will be released immediately upon the grand jury issuing a “no bill”. The deliberation process is done privately. The district attorney or prosecutor cannot be present while the grand jury votes.

There are ways to challenge indictments. One is to show that the district attorney failed to present enough evidence to show that a crime was committed and that the crime was committed by the defendant. Challenges like this are brought by motion to dismiss or what is known in Massachusetts as a McCarthy motion. Another way to try to get a case dismissed involves a challenge to the integrity of the grand jury process. Here, if the defense can establish that the grand jurors were misled by a lying prosecutor, police officer or other witness a judge might be persuaded to dismiss the case. Cases that are dismissed due to grand jury proceeding inadequacies are often re-indicted. This gives the district attorney another opportunity to charge the defendant with this crime. To avoid this, an experienced criminal lawyer might not move to dismiss prior to trial but leave this issue open to ensure success on appeal if necessary.

The grand jury process in Massachusetts is fertile ground for litigation that might result in success for the accused. This makes your choice of a criminal defense lawyer critical.

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Kaitlyn Hunt is an eighteen year old high school student who had a consensual relationship with a fifteen year old basketball teammate. The younger girls’ parents found out about the relationship and pressed criminal charges. Now, Hunt faces Felony Sex Crime Charges. A plea deal that prosecutors offered for Hunt would have placed her on house arrest for two years. Of course, this felony conviction would result in Hunt having to register as a Sex Offender. The article states that Hunt would have plead guilty to misdemeanor sex crimes but not to the felonies. Hunt’s lawyer correctly pointed out that being a convicted felon would adversely impact her ability to enter college and to prevent her from holding certain professional positions. Unlike Massachusetts where the age of consent is sixteen the age of consent in Florida is seventeen.

The Hunt case has sparked some interesting debate. A state senator, Thad Altman, known for having conservative views believes that this case is “tragic” and that the laws should be changed. He is quoted as saying “You would like to think this wouldn’t happen in this country, two teenagers in a moment of passion do something consensual and suddenly one is facing fifteen years in prison”. Altman intends to sponsor legislation that would address the Florida age limit issue. Altman is not alone. Over three hundred people have petitioned the Florida legislature to abort this prosecution.

So you ask “does this happen in Massachusetts”. The simple answer is yes. It does. Massachusetts law is a bit more forgiving in one respect. The age of consent is sixteen, one year younger than it is in Florida. I have defended charges involving consensual sexual relationships between fifteen year olds and seventeen year olds. Perhaps most troubling is the nomenclature of the crime in Massachusetts. It is called Rape of a Child. That is what your criminal record will reflect if you are convicted of having consensual sex with your underage partner. Your board of probation printout will not distinguish between a consensual relationship or a forcible rape. It will simply read that you were convicted of Rape of a Child in Massachusetts. You will most likely have to register as a level two or three sex offender, something that will stay with you for years and possibly for life. Schools will not accept you. Your employment opportunities will be limited. Your neighbors will probably learn that you have been convicted of a sex crime. You will not be able to coach your kids youth sports teams. Your life will be ruined.

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