Scione v. Commonwealth Commonwealth v. Barnes

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SJC-12536

SJC-12540

WILLIAM SCIONE vs. COMMONWEALTH.

COMMONWEALTH vs. DAVID W. BARNES.

Suffolk. September 7, 2018. - January 15, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Pretrial Detention. Rape. Destructive or Incendiary Device or

Substance. Constitutional Law, Preventive detention,

Vagueness of statute. Statute, Validity, Construction.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on April 26, 2018.

The case was heard by Kafker, J.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on June 11, 2018.

The case was reported by Gaziano, J.

Steven Van Dyke, Committee for Public Counsel Services

(Patrick Levin, Committee for Public Counsel Services, also

present) for William Scione.

Christopher B. Coughlin (Alexander C. Conley also present)

for David W. Barnes.

Catherine Langevin Semel & Marina Moriarty, Assistant

District Attorneys, for the Commonwealth.

2

BUDD, J. Here we are called upon to determine whether

G. L. c. 276, § 58A (§ 58A), the pretrial detention statute, may

be applied to David W. Barnes and William Scione, charged with

violating G. L. c. 265, § 23A (§ 23A) (rape of child aggravated

by age difference, i.e., statutory rape), and G. L. c. 266,

§ 102A (§ 102A) (use of incendiary device), respectively. We

conclude that § 23A does not qualify as a predicate offense

under § 58A in its current form,1 and that, depending upon the

circumstances, § 102A may (and, in this case, does) so qualify.

1. Statutory scheme of § 58A. Section 58A, which provides

for the pretrial detention of certain defendants, "seek[s]

systematically to identify those who may present a danger to

society and to incapacitate them before that danger may be

realized" (citation omitted). Mendonza v. Commonwealth, 423

Mass. 771, 780 (1996). The Commonwealth may move for a

dangerousness hearing pursuant to § 58A if a defendant has been

charged with one or more predicate offenses as defined under the

statute. G. L. c. 276, § 58A (4).

1 We note that on September 6, 2018, Governor Charles D.

Baker sent the Legislature a proposed bill titled, "An Act to

protect the Commonwealth from dangerous persons." If enacted,

this legislation would, among other things, amend G. L. c. 276,

§ 58A (§ 58A), to include G. L. c. 265, § 23A (§ 23A), as an

enumerated offense. See Letter from Governor Charles D. Baker

to Senate and House of Representatives, at 6-7 (Sept. 6, 2018),

https://www.mass.gov/files/documents/2018/09/06/Dangerous%20Pers

ons%20Letter%20and%20Bill%20Text.pdf [https://perma.cc/6UG8-

5B62].

3

If an individual has been charged with a predicate offense

as defined by § 58A, a hearing may be held to determine whether

the individual should be released either on personal

recognizance, under particular conditions, or not at all. G. L.

c. 276, § 58A (2). A judge may order pretrial detention if he

or she finds that the Commonwealth has established by clear and

convincing evidence that "no conditions of release will

reasonably assure the safety of any other person or the

community." G. L. c. 276, § 58A (3).

Predicate offenses under § 58A either are specifically

enumerated in the statute2 or fall within one (or more) of the

following categories: (1) those felonies that "ha[ve] as an

element of the offense the use, attempted use or threatened use

of physical force against the person of another" (force clause);

(2) "any other felony that, by its nature, involves a

substantial risk that physical force against the person of

another may result" (residual clause); or (3) "a misdemeanor or

2 The enumerated offenses in § 58A (1) include the

following: "the crimes of burglary and arson whether or not a

person has been placed at risk thereof, . . . a violation of an

order pursuant to [G. L. c. 208, § 18, 34B, or 34C; G. L.

c. 209, § 32; G. L. c. 209A, § 3, 4, or 5; or G. L. c.

209C, § 15 or 20], . . . arrested and charged with a violation

of [G. L. c. 269, § 10 (a), (c), or (m); G. L. c. 266, § 112; or

G. L. c. 272, §§ 77, 94], or arrested and charged with a

violation of [G. L. c. 269, § 10G]."

4

felony involving abuse as defined in [G. L. c. 209A, § 1]"

(abuse clause). G. L. c. 276, § 58A (1).

We are tasked with determining whether § 23A and § 102A,

neither of which is specifically enumerated in § 58A, fall

within one of the other specified categories of offenses

identified in the pretrial detention statute.

2. Barnes and § 23A. a. Background. We summarize the

facts alleged and procedural history provided in the record of

the proceedings against Barnes. After reportedly communicating

through social media, the victim and Barnes met at a

predetermined location and then proceeded to a hotel, where they

engaged in sexual intercourse. The victim later reported to

police that Barnes had sexually assaulted her. At the time of

the incident, the victim was fifteen years old and Barnes was

forty-three years old.

Barnes was charged with, among other things,3 statutory rape

in violation of § 23A, which provides in pertinent part:

"Whoever unlawfully has sexual intercourse or

unnatural sexual intercourse, and abuses a child under

[sixteen] years of age and . . . (b) there exists more than

a [ten-]year age difference between the defendant and the

victim where the victim is between the ages of [twelve] and

[sixteen] years of age . . . shall be punished . . . ."

3 Barnes was also charged with violating G. L. c. 265, § 26D

(enticement of child for prostitution); G. L. c. 265, § 13L

(reckless endangerment of child); and G. L. c. 272, § 53A

(sexual conduct for fee). These charges are not at issue in

this appeal.

5

At arraignment in the District Court, the Commonwealth moved to

detain Barnes pursuant to § 58A. Following a dangerousness

hearing, the Commonwealth's § 58A motion was allowed and Barnes

was ordered held. Barnes appealed to the Superior Court,

arguing that (1) § 23A does not qualify as a predicate offense

under the force clause of § 58A; and (2) the residual clause of

§ 58A is unconstitutionally vague. A Superior Court judge

agreed and reversed the District Court's judge's § 58A pretrial

detention order. The Commonwealth filed a petition for

extraordinary relief in the county court. G. L. c. 211, § 3. A

single justice of this court reserved and reported the case for

consideration by the full court.4

b. The force clause of § 58A. The force clause of § 58A

is straightforward: an offense qualifies as a predicate crime

pursuant to this clause if "an element of the offense is the

4 After the Commonwealth filed its G. L. c. 211, § 3,

petition, a grand jury indicted Barnes for violating § 23A,

based on the same facts. Barnes was arraigned in the Superior

Court, during which time the Commonwealth filed a new § 58A

motion but requested that no action be taken at arraignment due

to the instant appeal before this court; instead, bail was set

with conditions. The Commonwealth moved to dismiss the charge

in the District Court. That motion was allowed. Although the

Commonwealth's c. 211, § 3, petition pertained to Barnes's

District Court charge, which has since been dismissed, review by

this court to determine whether a charge of violating § 23A

qualifies as a predicate offense under § 58A remains

appropriate, as Barnes is still subject to potential § 58A

pretrial detainment in the Superior Court based on the same

charge.

6

use, attempted use or threatened use of physical force against

the person of another." G. L. c. 276, § 58A (1). In making

this determination, we take a categorical approach, that is,

look at the elements of the offense, rather than the facts of or

circumstances surrounding the alleged conduct. Commonwealth v.

Young, 453 Mass. 707, 711-712 (2009).

The elements of the crime of statutory rape in violation of

§ 23A are that the defendant (1) had sexual intercourse or

unnatural sexual intercourse with (2) a child between twelve and

sixteen years of age, and (3) there is more than a ten-year gap

between the ages of the defendant and the victim. See G. L.

c. 265, § 23A. Compare Commonwealth v. Bernardo B., 453 Mass.

158, 172 (2009) (discussing elements of G. L. c. 265, § 23,

"rape and abuse of child"). On its face, § 23A does not have as

an element "the use, attempted use or threatened use of force."

G. L. c. 276, § 58A (1). See Bernardo B., supra ("Force is not

a necessary element of the crime"). The Commonwealth contends

that a charge of statutory rape nevertheless qualifies as a

predicate offense under the force clause of § 58A because

statutory rape contains an inherent element of force and the act

of penetration on a child may substitute for the physical force

requirement of the force clause.

To support its position, the Commonwealth points to cases

in which the defendant is charged with forcible rape pursuant to

7

G. L. c. 265, § 22 (§ 22), and the (adult) complainant was

unable to give or refuse consent due to being intoxicated or

otherwise incapacitated. We have held that there, "the only

force required for proof of the crime is 'such force as was

necessary to accomplish' the act of intercourse -- that is, only

the force necessary to effect penetration." Commonwealth v.

Blache, 450 Mass. 583, 589 (2008), quoting Commonwealth v.

Burke, 105 Mass. 376, 380 (1870). The Commonwealth reasons that

because a child is legally incapable of consenting to sexual

intercourse, see Commonwealth v. Wilbur W., 479 Mass. 397, 398-

399 (2018), the act of penetration of a child satisfies the

element of physical force required by § 58A. This argument is

flawed.

Unlike § 23A, § 22 includes as an element the use or

threatened use of force.5 The fact that the element of force in

§ 22 may be satisfied in some cases by the act of penetration

has nothing at all to do with whether § 23A includes the use of

force as an element of the crime. The fact that a child is

incapable of consenting to sexual intercourse is relevant not to

whether there is an element of force in statutory rape, but

5 General Laws c. 265, § 22 (§ 22), states in pertinent

part: "Whoever has sexual intercourse or unnatural sexual

intercourse with a person, and compels such person to submit by

force and against his will, or compels such person to submit by

threat of bodily injury . . . shall be punished . . . ."

8

instead to whether consent is a defense to the crime (it is

not).

Importantly, the crime of forcible rape of a child, G. L.

c. 265, § 22A, which punishes "[w]hoever has sexual intercourse

or unnatural sexual intercourse with a child under [sixteen],

and compels such child to submit by force and against his will

or compels such child to submit by threat of bodily injury,"

does qualify as a predicate offense under the force clause of

§ 58A (emphasis added). The fact that the Legislature saw fit

to create two separate statutory rape offenses -- one that

includes the use of force and one that does not -- further

supports our conclusion that § 23A does not contain as an

element the use of force.

Because "the use, attempted use or threatened use of

physical force" is not an element of § 23A, the statute does not

qualify as a predicate offense under the force clause of § 58A.

c. The residual clause of § 58A. The Commonwealth also

maintains that § 23A is a predicate offense under the residual

clause of § 58A, and that the motion judge erred in concluding

that the clause is unconstitutionally vague. We agree with the

motion judge.

A statute is unconstitutionally vague when "it lacks

. . . certainty and definiteness . . . so that a [person] of

ordinary intelligence [is unable] to ascertain whether any act

9

or omission of his [or hers], as the case may be, will come

within the sweep of the statute." Commonwealth v. Slome, 321

Mass. 713, 715 (1947). See Commonwealth v. Reyes, 464 Mass.

245, 249 (2013). See also Sessions v. Dimaya, 138 S. Ct. 1204,

1212 (2018) (opinion of Kagan, J.) (Dimaya). However, "[t]he

degree of vagueness that is permissible under principles of due

process varies with the interests involved."6 Chief of Police of

Worcester v. Holden, 470 Mass. 845, 854 (2015) (citation

omitted). See Dimaya, supra at 1212 (opinion of Kagan, J.).

The United States Supreme Court declared a similar residual

clause, found in 18 U.S.C. § 924(e)(2)(B)(ii) (2012), known as

the Armed Career Criminal Act (ACCA), to be unconstitutionally

vague. Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).

The ACCA, which more severely punishes those defendants with

three or more previous violent felony convictions, defines

"violent felony" to include "any crime punishable by

imprisonment for a term exceeding one year . . . that . . .

involves conduct that presents a serious potential risk of

physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The

Court held that the clause violated due process because it left

6 Thus, for example, "the regulation of business and

economic activity is subject to a vagueness test less strict

than that applied to most criminal behavior." Brookline v.

Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass.

372, 378 (1982), S.C., 398 Mass. 404 (1986).

10

open the question how to estimate the risk of physical injury

posed by a crime, as well as how much risk was required for a

crime to qualify as a violent felony. Johnson, supra at 2557-

2558. We soon followed suit with respect to the Massachusetts

version of the ACCA, G. L. c. 140, § 121, as incorporated in

G. L. c. 269, § 10G, which included an almost identical residual

clause.7 Commonwealth v. Beal, 474 Mass. 341, 350-351 (2016).

More recently, the Supreme Court reviewed the Federal

statute defining "crime of violence" (18 U.S.C. § 16) and struck

down its residual clause, which is almost identical to that of

§ 58A. See Dimaya, 138 S. Ct. at 1211. Compare 18 U.S.C.

§ 16(b) with G. L. c. 276, § 58A (1). The residual clause of 18

U.S.C. § 16 defines a crime of violence to include any felony

"that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in

the course of committing the offense."8 18 U.S.C. § 16(b).

7 The residual clause of G. L. c. 269, § 10G, provides that

a "violent crime" includes "any crime punishable by imprisonment

for a term exceeding one year . . . that . . . involves conduct

that presents a serious risk of physical injury to another."

G. L. c. 140, § 121, as incorporated in G. L. c. 269, § 10G.

8 The only difference between the residual clause of 18

U.S.C. § 16(b) and that of § 58A (1) is that, unlike the latter,

the former includes in its definition "physical force against

the person or property of another" (emphasis added).

11

In Dimaya, the defendant, who was found to be deportable

pursuant to the Immigration and Nationality Act after being

convicted of a crime of violence as defined by 18 U.S.C.

§ 16(b),9 challenged that clause as being unconstitutionally

vague. The Court concluded that because "deportation is 'a

particularly severe penalty,'" "the most exacting vagueness

standard should apply." Dimaya, supra at 1213 (opinion of

Kagan, J.). Following the reasoning in Johnson, the Court

concluded that, like the residual clause of the ACCA, § 16(b)

violates due process "[b]y combining indeterminacy about how to

measure the risk posed by a crime with indeterminacy about how

much risk it takes for the crime to qualify as a [crime of

violence]." Dimaya, supra at 1214, quoting Johnson, 135 S. Ct.

at 2558.

We note that the United States Supreme Court has not opined

on the constitutionality of the residual clause found in the

9 The Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii), requires the deportation of any alien

convicted of an "aggravated felony," which includes under the

statute a crime of violence as defined by 18 U.S.C. § 16.

12

Federal pretrial detention statute.10,11 However, we focus here

on art. 12 of the Massachusetts Declaration of Rights with

regard to § 58A. See, e.g., Commonwealth v. Augustine, 467

Mass. 230, 243-244 (2014). In doing so we note that although

pretrial detention is "regulatory in character," Brangan v.

Commonwealth, 477 Mass. 691, 702 n.16 (2017), "[t]he right to be

free from confinement prior to trial is a protected liberty

interest," (citations omitted).12 Commonwealth v. Torres, 441

Mass. 499, 502 n.4 (2004). We have held other statutes that

fail to give notice of conduct to be avoided and provide

unfettered discretion to police or the courts to be

unconstitutionally vague under due process principles where the

defendant's liberty interest is at stake. See Alegata v.

Commonwealth, 353 Mass. 287, 294-301 (1967) (striking down G. L.

10The federal pretrial detention statute, 18 U.S.C.

§ 3142(f)(1)(A), subjects defendants to a pretrial detention

hearing when his or her case involves "a crime of violence." A

"crime of violence" is defined in 18 U.S.C. § 3156(a)(4)(B) as

"any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course of

committing the offense."

11At least one Federal District Court has addressed the

issue, however. The United States District Court for the

Western District of New York concluded that the Federal pretrial

detention statute is not unconstitutionally vague. See United

States vs. Watkins, U.S. Dist. Ct., No. 18-CR-131 (W.D.N.Y. Oct.

9, 2018).

12The length of a pretrial detention period may, in some

cases, last years. See e.g., Brangan, 477 Mass. at 693.

13

c. 272, § 66, in part, G. L. c. 272, § 63, in part, and G. L.

c. 272, § 68, in part, as facially void under due process

clause); Revere v. Aucella, 369 Mass. 138, 142-143 (1975),

appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429

U.S. 877 (1976) (holding G. L. c. 272, § 16, unconstitutionally

vague and overbroad for purpose of imposing criminal liability);

Commonwealth v. Kwiatkowski, 418 Mass. 543, 546-547 (1994)

(holding G. L. c. 265, § 43 [d], unconstitutionally vague under

due process principles); Commonwealth v. Pagan, 445 Mass. 161,

170-173 (2005) (striking down G. L. c. 275, § 18, in part, as

unconstitutionally vague).13

Given the Supreme Court’s holdings in Johnson and Dimaya,

coupled with our vagueness jurisprudence, we conclude that the

language in the residual clause of § 58A is unconstitutionally

vague under art. 12, and therefore § 23A cannot qualify as a

predicate offense pursuant to it.14

13To the extent that any of these cases refer to the

Fourteenth Amendment to the United States Constitution when

concluding that the statute at issue violates due process, the

statute also violates due process principles in art. 12 of the

Massachusetts Declaration of Rights.

14Analogizing to Beckles v. United States, 137 S. Ct. 886

(2017), the Commonwealth contends that § 58A should not be

subject to a rigorous vagueness analysis because the statute

only triggers the Commonwealth's right to move for a

dangerousness hearing and does not define a criminal offense or

"fix" a permissible sentence. See id. at 892. This argument is

misplaced.

14

3. Scione and § 102A. a. Background. We summarize the

alleged facts gleaned from the investigative reports, as well as

the procedural history provided in the record of the proceedings

against Scione, reserving certain details for later discussion.

Police responded to a 911 call reporting a fire in the driveway

of the victim's residence. Upon extinguishing the fire,

officers observed the melted remains of a plastic gasoline

container. A police detective described the origin of the fire

as a "homemade" improvised explosive device (I.E.D.), which, had

it exploded, could have caused "serious harm."

Scione was charged with violating § 102A, which provides in

pertinent part:

"Whoever, without lawful authority, . . . places an

explosive or a destructive or incendiary device or

substance with the intent: (i) to cause fear, panic or

In Beckles, the Supreme Court held that the Federal

sentencing guidelines could not be challenged for vagueness

because they are merely advisory and thus did not create any

arbitrary mechanisms of enforcement. See id. Section 58A (1)

automatically authorizes the Commonwealth to move for a

dangerousness hearing if the charged offense fits within any of

the categories of the provision, including the residual clause.

As a defendant who is subject to § 58A hearing faces the

possibility of pretrial detention, his or her liberty is plainly

at stake. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992)

("Freedom from bodily restraint has always been at the core of

the liberty protected by the Due Process Clause from arbitrary

governmental action"); Josh J. v. Commonwealth, 478 Mass. 716,

720-721 (2018); Paquette v. Commonwealth, 440 Mass. 121, 124,

131 (2003), cert. denied, 540 U.S. 1150 (2004). See generally

United States v. Salerno, 481 U.S. 739 (1987) (facial challenge

to Bail Reform Act, which subjects defendants to pretrial

detention, must pass scrutiny under due process clause).

15

apprehension in any person; or (ii) to ignite, explode or

discharge such explosive or such destructive or incendiary

device or substance . . . shall be punished . . . ."

At Scione's arraignment in the District Court, the

Commonwealth moved to detain him pursuant to § 58A. Following

the dangerousness hearing, the judge allowed the Commonwealth's

motion. Scione appealed from the ruling to the Superior Court,

challenging (for the first time) the Commonwealth's ability to

seek detention under § 58A with an alleged violation of § 102A

as the predicate offense. A Superior Court judge denied

Scione's appeal, concluding that the charge against him was a

lawful predicate under the abuse clause. Subsequently, Scione

filed a petition for extraordinary relief in the county court.

See G. L. c. 211, § 3. A single justice of this court denied

the petition without a hearing, and Scione appealed. The case

is now properly before us pursuant to S.J.C. Rule 2:21, as

amended, 434 Mass. 1301 (2001).15

15Similar to Barnes's case, after Scione filed his c. 211,

§ 3, petition, a grand jury indicted him for violating § 102A

based on the same facts, and the Commonwealth moved to dismiss

the case in the District Court. The Commonwealth filed a new

§ 58A motion in the Superior Court, where a judge found that

abuse was alleged in connection with the charge, and ordered

Scione held. Thus, as with Barnes's case, although the c. 211,

§ 3, petition pertained to the now-dismissed District Court

charge, review by this court to determine whether the charge of

violating § 102A qualifies as a predicate offense under § 58A

remains appropriate.

16

b. The abuse clause of § 58A. Scione argues that the

lower court judge erred in concluding that a charge under § 102A

qualifies as a predicate offense under the abuse clause, that

is, that § 102A is not a "misdemeanor or felony involving

abuse." G. L. c. 276, § 58A (1). In particular, he contends

that the language and structure of the abuse clause requires a

categorical approach, i.e., an inquiry focused only on the

statutory elements of the charged offense, rather than the facts

underlying the complaint or indictment. See Commonwealth v.

Young, 453 Mass. 707, 712 (2009). Scione maintains that because

§ 102A does not have abuse as an element of the offense, it

cannot be a predicate offense that triggers § 58A. In contrast,

the Commonwealth argues that the plain language of the abuse

clause of § 58A captures all offenses "involving abuse" as

defined in G. L. c. 209A, § 1 (c. 209A, § 1), regardless of

whether the abuse involved is a statutorily prescribed element

of the offense charged. For the reasons that follow, we agree

with the Commonwealth.

Whether the abuse clause of § 58A requires a categorical

approach depends on what the Legislature meant by the phrase "a

misdemeanor or felony involving abuse." See Pyle v. School

Comm. of S. Hadley, 423 Mass. 283, 285 (1996) ("Our primary duty

is to interpret a statute in accordance with the intent of the

Legislature").

17

As discussed in more detail supra, § 58A specifically

states that "abuse" is defined there just as the term is defined

in c. 209A, § 1. This does not provide any insight whether a

categorical approach to the abuse clause is necessary. The word

"involving" is not defined in the statute. "When a statute does

not define its words we give them their usual and accepted

meanings, as long as these meanings are consistent with the

statutory purpose. . . . We derive the words' usual and

accepted meaning from sources presumably known to the statute's

enactors, such as their use in other legal contexts and

dictionary definitions." Commonwealth v. Campbell, 415 Mass.

697, 700 (1993), quoting Commonwealth v. Zone Book, Inc., 372

Mass. 366, 369 (1977). Webster's Third New International

Dictionary 1191 (1993) defines the term "involve" as "to relate

closely[,] . . . contain, include[,] . . . to require as a

necessary accompaniment[,] . . . to have an effect on[,] concern

directly." The term appears to connote both nonexhaustive

inclusion with the use of the word "include," and selective

exclusivity with the use of the phrase "to require as a

necessary accompaniment," depending upon the classification at

issue.

Thus, it is unclear whether "involving" in the abuse clause

means "limited to," or "including but not limited to." The

former meaning would indicate a categorical approach, looking

18

only at the elements of the crime to determine whether a

particular offense is one "involving abuse"; the latter meaning

would instead require a review of the circumstances surrounding

the alleged crime. As we cannot discern the meaning of the

clause based on its plain language, we turn to other "well-

established principles of statutory construction [to] guide our

interpretation." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass.

329, 334 (2016).

We begin by comparing the abuse clause to the force clause,

also in § 58A (1). See Ginther v. Commissioner of Ins., 427

Mass. 319, 324 (1998) (comparing use of language employed within

same statute is well-established rule of statutory

construction). The force clause permits the Commonwealth to

move for the pretrial detention of a defendant charged with "a

felony offense that has as an element of the offense the use,

attempted use or threatened use of physical force against the

person of another" (emphasis added). G. L. c. 276, § 58A (1).

Notably, there the Legislature specifically refers to those

crimes which have "as an element of the offense" the use of

force, but did not do so in the abuse clause. See Commonwealth

v. Gagnon, 439 Mass. 826, 833 (2003) ("[w]here the [L]egislature

has carefully employed a term in one place and excluded it in

another, it should not be implied where excluded" [citation

19

omitted]). See also Commonwealth v. Caracciola, 409 Mass. 648,

653 n.8 (1991).

Additionally, we note that there is a fundamental

difference between the concepts of "the use of force" and

"abuse." The use of force can be, and is, an element of

particular crimes. See, e.g., G. L. c. 265, § 22A (rape of

child); G. L. c. 265, § 22 (rape); G. L. c. 265, § 18C (home

invasion); G. L. c. 265, § 19 (unarmed robbery); G. L. c. 265,

§ 51 (human trafficking -- "forced services").

In contrast, as used in § 58A, abuse is not an element of a

crime. "Abuse" is defined in c. 209A, § 1, as

"the occurrence of one or more of the following acts

between family or household members: (a) attempting to

cause or causing physical harm; (b) placing another in fear

of imminent serious physical harm; (c) causing another to

engage involuntarily in sexual relations by force, threat

or duress."

Thus, "abuse" as it is used in § 58A is best described as a

characterization of an action or actions, and is itself

comprised of elements. We are unaware of any crimes that have

as an element "abuse" as defined in c. 209A, § 1.

As the Commonwealth points out, only assault or assault and

battery on a household member, in violation of G. L. c. 265,

§ 13M, likely would satisfy the abuse clause under a categorical

approach. The drafters clearly knew how to list specific crimes

to be considered as predicate offenses under § 58A, because they

20

did so. See G. L. c. 276, § 58A (1). Had the Legislature

intended that only one crime be captured under the abuse clause,

there would be no need for the clause at all; instead, the

drafters would have included § 13M as one of the specifically

enumerated offenses in the section.16 See DiFiore v. American

Airlines, Inc., 454 Mass. 486, 490-491 (2009) ("our respect for

the Legislature's considered judgment dictates that we interpret

the statute to be sensible, rejecting unreasonable

interpretations unless the clear meaning of the language

requires such an interpretation").

Finally, applying a noncategorical approach to the abuse

clause is well supported by the legislative history of § 58A.

See Casseus v. Eastern Bus Co., 478 Mass. 786, 797 (2018),

quoting Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013)

("A statute's meaning 'must be reasonable and supported by the

16Scione's reliance upon Commonwealth v. Young, 453 Mass.

707 (2009), to support the argument that the abuse clause

requires a categorical approach to determine whether a felony is

a predicate offense under § 58A is unavailing. In that case,

where we held that unlawful possession of a firearm is not a

predicate offense under § 58A, we concluded that "§ 58A requires

a categorical approach to determining whether a felony is a

predicate offense, independent of the particular facts giving

rise to a complaint or indictment." Id. at 712, 716. However,

this conclusion referred to the force and residual clauses of

§ 58A, not its abuse clause. Id. at 711-712. Parenthetically,

we note that the Legislature has since amended § 58A to include

unlawful possession of a firearm as an enumerated offense. See

G. L. c. 276, § 58A (1).

21

. . . history of the statute'"). In 1994, after the previous

version of the pretrial detention statute had been held

unconstitutional,17 the newly proposed bill was presented to the

Legislature accompanied by a letter from then Governor William

F. Weld explaining its purpose. The Governor wrote in part:

"Government has no more important obligation than

protecting the safety of its citizens, and yet dangerous

arrestees who clearly pose an ongoing danger to our

community too often are released out on bail or personal

recognizance. Innocent lives, particularly the lives of

women victimized by domestic violence continue to be at

risk. This legislation is critical to our ability to

reduce, if not eliminate, that risk."

1994 House Doc. No. 4305. In addition, when the Senate was

considering the proposed legislation, at least one senator

raised the issue of combatting domestic violence.18 Thus,

interpreting the abuse clause so as to allow for the examination

of the underlying facts giving rise to the charge in question,

rather than in a strictly categorical way, is in keeping with

the Legislature's intent.

17We concluded that certain provisions of G. L. c. 276,

§ 58, as amended through St. 1992, c. 201, §§ 3-4, the

predecessor to § 58A, had insufficient procedural protections.

See Aime v. Commonwealth, 414 Mass. 667, 682 (1993).

18In highlighting the importance of the bill, then Senator

Cheryl Jacques stated during a Senate session on June 30, 1994:

"One of the biggest fights on [the Senate's] hands is curbing

domestic abuse." State House News Service (Senate Sess.), June

30, 1994, at 1 (considering bail reform and "release on bail of

certain persons" in 1994 House Doc. No. 4305).

22

For the foregoing reasons, we conclude that a judge may

look beyond the elements of a crime to the surrounding

circumstances of the alleged offense to determine whether it is

"misdemeanor or felony involving abuse," and thus a predicate

offense under § 58A.19

c. Application of the abuse clause to the circumstances of

the alleged violation of § 102A. Scione argues that, even

taking a noncategorical approach, the circumstances surrounding

his alleged violation of § 102A do not qualify under the abuse

clause of § 58A, that is, the alleged facts did not involve

abuse as defined by c. 209A, § 1. More specifically, he argues

that the record does not support a finding that he is a "family

or household member[]," that he "attempt[ed] to cause . . .

physical harm" to the victim or that he "plac[ed anyone] in fear

of imminent serious physical harm." See G. L. c. 209A, § 1.

Reviewing the single justice's order pursuant to G. L. c. 211,

§ 3, for an abuse of discretion or clear error of law, see

Department of Mental Retardation v. Kendrew, 418 Mass. 50, 53

(1994), we find neither.

19Scione also argues that § 102A does not qualify as a

predicate for pretrial detention under the residual clause of

§ 58A and that the clause is unconstitutionally vague. Based on

our conclusion that § 102A is a predicate offense in these

circumstances pursuant to the abuse clause of § 58A (and because

we conclude in part 2.c, supra, that the residual clause is

unconstitutional), we need not reach these arguments.

23

Pursuant to c. 209A, § 1, a "family or household member[]"

is defined in pertinent part as

"persons who . . . are or have been in a substantive dating

or engagement relationship, which shall be adjudged by

. . . consideration of the following factors: (1) the

length of time of the relationship; (2) the type of

relationship; (3) the frequency of interaction between the

parties; and (4) if the relationship has been terminated by

either person, the length of time elapsed since the

termination of the relationship" (emphasis added).

Here, according to the record, Scione and the victim had dated

for approximately four years before the victim ended the

relationship in 2012, six years prior to the instant incident.

Although the victim had not had physical or verbal contact with

Scione for a few years after the relationship ended, over the

past six years, members of the victim's family had seen Scione

on numerous occasions walking past their home. Approximately

three years ago, he was seen looking into the windows of the

home, and during the week preceding the incident, he was

observed throwing candy at the house, specifically at the window

that used to be that of the victim's bedroom when she and Scione

were dating. These facts certainly satisfy the definition of a

family or household member as defined by c. 209A, § 1. See,

e.g., Brossard v. West Roxbury Div. of the Dist. Court Dep't,

417 Mass. 183, 185 (1994) ("emotional relationship which

entailed substantially more than a few casual dates" amounted to

"substantive dating relationship").

24

The record also supports a finding that Scione attempted to

cause physical harm or placed the victim in fear of imminent

serious physical harm as he placed a homemade I.E.D. at the

bottom of the victim's driveway, which, had it exploded, could

have caused serious harm. Thus, based on the circumstances in

this case, the alleged violation of § 102A qualifies as a

predicate offense under the abuse clause of § 58A. We therefore

affirm the order of the single justice denying Scione's petition

for extraordinary relief.

4. Conclusion. The Superior Court judge's order vacating

the District Court judge's § 58A pretrial detention order of

Barnes is affirmed. The denial of Scione's petition for

extraordinary relief is affirmed.

So ordered.

LOWY, J. (concurring). I agree with the court that, in the

circumstances of this case, use of an incendiary device in

violation of G. L. c. 266, § 102A, qualifies as a predicate

offense under the pretrial detention statute, G. L. c. 276,

§ 58A (§ 58A). I also agree that rape aggravated by age

difference, G. L. c. 265, § 23A (§ 23A), does not qualify as a

predicate offense under § 58A. I write separately because such

a counterintuitive result requires further discussion and

consideration by the Legislature.

As discussed in the court's opinion, the pretrial detention

statute does not list rape aggravated by age difference as a

qualifying offense. Given today's result, the Legislature may

choose to consider this omission with alacrity.20 There is an

apparent explanation for why aggravated rape is not enumerated

as a qualifying offense -- it presumably falls within the

residual clause of § 58A. Our decision today makes clear,

however, that the residual clause is unconstitutionally vague.

Finally, the force clause of § 58A applies only when an element

of the offense is "the use, attempted use or threatened use of

physical force against the person of another." G. L. c. 276,

§ 58A (1). Aggravated rape, as it applies to this indictment,

means that there was intercourse between individuals more than

20Indeed, there is pending legislation to this effect. See

2018 House Doc. No. 4903.

2

ten years apart in age. Indeed, the point of criminalizing this

serious and disturbing conduct is that such conduct is deeply

offensive, regardless of whether force is used. The

Commonwealth's argument that § 23A falls within the force clause

is to ignore the egregiousness of a violation of § 23A even when

no force is involved.

Although our conclusion with respect to aggravated rape is

unfortunate, it is correct under the law as currently written.

Therefore, I concur in the judgments.