Sexual Assault and Rape Defense in Massachusetts

Massachusetts sex offense charges carry consequences that outlast the criminal sentence by decades. Sex Offender Registry Board classification, reporting obligations, global positioning system monitoring as a condition of probation, immigration exposure, and professional licensing all follow a conviction and several of them follow a disposition that is not a conviction at all. Several of these offenses cannot be resolved by a continuance without a finding because the statute forbids it. A lawyer should identify which statute is charged, and what that particular section allows, before anyone discusses a resolution.

The offenses below are grouped by the way they are charged in practice rather than by section number. Within each group the penalties differ sharply, and the difference usually turns on one fact: the age of the complainant, whether force was used, whether an enumerated aggravating circumstance was present, or whether the defendant has a qualifying prior conviction.

The Statutory Framework

Rape and Aggravated Rape, M.G.L. c. 265, § 22

Section 22(b) is the base offense. It punishes sexual intercourse or unnatural sexual intercourse where the defendant compels the complainant to submit by force and against their will, or by threat of bodily injury. The penalty is up to twenty years in state prison. A second or subsequent offense carries life or any term of years.

Section 22(a) is aggravated rape. It requires the same conduct plus one of three circumstances: the act results in or is committed with acts resulting in serious bodily injury, the act is committed by a joint enterprise, or the act is committed during the commission or attempted commission of an enumerated felony, including armed assault in a dwelling, home invasion, kidnapping, burglary, and unlawful carrying of a firearm. The penalty is life or any term of years.

Section 22(a) carries no mandatory minimum. This is worth stating plainly because it is frequently reported otherwise. The only ten-year floor anywhere in § 22 attaches to committing an offense described in the section while armed with a firearm as defined in M.G.L. c. 140, § 121, and a second or subsequent armed offense carries life or any term of years but not less than fifteen. A person serving a sentence for a second or subsequent offense is ineligible for furlough, temporary release, or outside education, training, or employment programs until two thirds of the minimum has been served.

Rape of a Child With Force, M.G.L. c. 265, §§ 22A, 22B and 22C

These three sections form a ladder. Each requires sexual intercourse or unnatural sexual intercourse with a child under sixteen, compelled by force and against the child’s will or by threat of bodily injury. What separates them is aggravation and criminal history, and the sentencing consequences are very different at each rung.

• Section 22A, rape of a child with force. Life or any term of years. There is no minimum term. A prosecution under this section shall neither be continued without a finding nor placed on file.
• Section 22B, aggravated rape of a child with force. Life or any term of years, but not less than fifteen years. The section applies where the offense is committed during an enumerated felony, results in substantial bodily injury as defined in M.G.L. c. 265, § 13J, is committed while the victim is tied, bound or gagged, follows the administration of alcohol or a controlled substance without consent, is committed by a joint enterprise, or is committed in a manner in which the victim could contract a sexually transmitted disease of which the defendant knew or should have known they were a carrier.
• Section 22C, rape of a child with force by a previously convicted offender. Life or any term of years, but not less than twenty years. The predicate list includes §§ 13B, 13B1/2, 13H, 24B, 22A, 22B, 23, 23A and 22, and like violations of the laws of another jurisdiction.

The fifteen year and twenty year terms in §§ 22B and 22C are true mandatory minimums. Each section provides that the sentence shall not be reduced below the minimum, shall not be suspended, and that the person is ineligible for probation, parole, work release or furlough, or any deduction for good conduct, until the minimum has been served. Both sections also bar a continuance without a finding and bar placing the case on file.

Under § 22C the Commonwealth may prove the prior conviction by certified attested copies of court papers or of probation or correction records. That documentation is prima facie evidence, is self-authenticating, and is admissible after the Commonwealth has established guilt on the primary offense. No live witness is required. Where the prior is contested, the record of that earlier case is where the work is.

Rape and Abuse of a Child, M.G.L. c. 265, §§ 23, 23A and 23B

This is the group commonly called statutory rape. Force is not an element. Section 23 punishes whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses, a child under sixteen. The penalty is life, any term of years, or any term in a jail or house of correction. A prosecution under the section shall neither be continued without a finding nor placed on file.

The Commonwealth proves two things and only two. Commonwealth v. Miller, 385 Mass. 521, 522 (1982), states them: “(1) sexual intercourse or unnatural sexual intercourse, with (2) a child under sixteen years of age.” Abuse is not a separate element. It is implied as a matter of law from intercourse with a child under sixteen. Commonwealth v. Wilbur W., 479 Mass. 397, 398 to 399 (2018), confirms that the offense is one of strict liability and that a person below sixteen is deemed incapable of consenting. Reasonable mistake as to age is not a defense. Massachusetts has no close in age exception.

• Section 23A, aggravated rape and abuse of a child. Life or any term of years, but not less than ten years. It applies where there is more than a five year age difference and the child is under twelve, more than a ten year age difference and the child is between twelve and sixteen, or the defendant was a mandated reporter as defined in M.G.L. c. 119, § 21.
• Section 23B, rape and abuse of a child by a previously convicted offender. Life or any term of years, but not less than fifteen years, on the same predicate list used in § 22C.

The ten year and fifteen year terms in §§ 23A and 23B are true mandatory minimums, carrying the same bar on reduction, suspension, probation, parole, work release, furlough and good conduct deductions. Both sections bar a continuance without a finding and bar filing.

Because § 23 itself has no minimum and permits a house of correction sentence, the charging decision between § 23 and § 23A is often the single most consequential fact in the case. The age gap and the mandated reporter question should be examined against the actual dates of birth in the record rather than the dates recited in the police report.

Indecent Assault and Battery, M.G.L. c. 265, §§ 13B, 13B1/2, 13B3/4, 13F and 13H

• Section 13B, on a child under fourteen. Up to ten years in state prison or up to two and one half years in a house of correction. There is no minimum term. A prosecution under this section shall neither be continued without a finding nor placed on file. The child is deemed incapable of consenting.
• Section 13B1/2, aggravated, on a child under fourteen. Life or any term of years, but not less than ten years, where the offense is committed during an enumerated felony or where the defendant was a mandated reporter. This is a true mandatory minimum and the section bars a continuance without a finding and bars filing.
• Section 13B3/4, on a child under fourteen by a previously convicted offender. Life or any term of years, but not less than fifteen years. True mandatory minimum, and the section bars a continuance without a finding and bars filing.
• Section 13F, on a person with an intellectual disability, knowing the person to have that disability. Five to ten years in state prison on a first offense, and not less than ten years on a second or subsequent offense. The statute expressly excepts a first offense from the bar on suspension, probation and parole, so the five year figure operates as a floor on a committed sentence rather than as time that must be served.
• Section 13H, on a person who has attained age fourteen. Up to five years in state prison or up to two and one half years in a jail or house of correction. There is no minimum term. Where the complainant is an elder or a person with a disability as defined in M.G.L. c. 265, § 13K, the exposure rises to ten years, a second or subsequent offense carries up to twenty years, and that paragraph alone bars a continuance without a finding and bars filing.

One point about § 13H is missed often enough to be worth stating. The bar on a continuance without a finding applies only to the elder and person with a disability paragraph. An ordinary § 13H charge involving a complainant fourteen or older is not barred by the statute from that disposition.

Assault With Intent to Commit Rape, M.G.L. c. 265, §§ 24 and 24B

Section 24 punishes assault with intent to commit rape by up to twenty years in state prison or up to two and one half years in a jail or house of correction. A second or subsequent offense carries life or any term of years. Committing the offense while armed with a firearm carries not less than five years. Section 24B covers assault of a child under sixteen with intent to commit rape and carries life or any term of years, with a five year floor for a subsequent offense by a person over eighteen, a ten year floor where the defendant is armed with a firearm, and a fifteen year floor for a second or subsequent armed offense by a person over eighteen.

Neither section bars a continuance without a finding, and neither contains the language that makes a floor into time that must be served. The only collateral restriction in § 24 covers furlough, temporary release, and outside programs, and only until two thirds of the minimum has been served.

Child Pornography, M.G.L. c. 272, §§ 29A, 29B and 29C

Three separate offenses, and the distance between them is the most consequential fact on this part of the page.

• Section 29C, knowing purchase or possession. Up to five years in state prison or up to two and one half years in a house of correction, and a fine of $1,000 to $10,000. A second offense carries not less than five years, and a third or subsequent offense not less than ten years. This section, alone among the three, provides that a prosecution shall not be continued without a finding nor placed on file.
• Section 29B, dissemination, or possession with intent to disseminate. Ten to twenty years in state prison, or a fine of $10,000 to $50,000 or three times any economic gain, whichever is greater, or both.
• Section 29A, hiring, employing, procuring or knowingly permitting a child to pose or be exhibited in a state of nudity or to engage in sexual conduct for visual material. Ten to twenty years in state prison, or a fine of $10,000 to $50,000, or both. Lascivious intent is an element of subsection (a). It does not appear in subsection (b), which covers sexual conduct and live performances.

Simple possession tops out at five years. Possession with intent to disseminate carries ten to twenty. That is a ten year jump turning on a single question of intent, and in a case built on a forensic image of a hard drive the evidence of intent is usually the presence of file sharing software, folder structure, or messages. Whether the Commonwealth can prove intent to disseminate is often the whole case.

A word about how these ranges should be described. Sections 29A and 29B state the prison term in the alternative with a fine, and neither contains language barring suspension of the sentence or making the defendant ineligible for probation, parole, furlough, work release, or good conduct deductions. Under Commonwealth v. Lightfoot, 391 Mass. 718, 721 (1984), that language is what turns a floor into a term that must be served, and it is absent here. What the ten years does is bind the shape of a committed sentence: under Commonwealth v. Brown, 431 Mass. 772 (2000), a “not less than” figure is “always the shortest sentence that can be imposed, the number of years that determines parole eligibility.” So a state prison sentence under § 29A or § 29B cannot carry a minimum below ten years, and prison is not the only disposition the sections authorize. No Massachusetts appellate decision describes the § 29A or § 29B ten year term as a mandatory minimum.

Juvenile Sexting, M.G.L. c. 272, § 29D

Chapter 118 of the Acts of 2024 inserted § 29D for people under the age of criminal majority who possess, purchase or disseminate this material. The Juvenile Court has exclusive jurisdiction. A person adjudicated under the section is not required to register with the Sex Offender Registry Board, no data is transmitted to the Board, and the records are eligible for expungement. The section also supplies affirmative defenses where the material portrays no one but the juvenile, and where the juvenile was under eighteen, the material portrays only a person sixteen or older, it was knowingly and voluntarily sent by the person depicted, and the juvenile did not forward it. Getting a young client charged under § 29D rather than § 29B or § 29C changes the rest of that person’s life.

Photographing an Unsuspecting Person, M.G.L. c. 272, § 105

Section 105 is read too broadly on most descriptions of it, including the one that used to appear here. Subsection (b) has three paragraphs and they do not carry the same penalty.

• First paragraph. Willfully photographing, videotaping or electronically surveilling a person who is nude or partially nude, with intent to secretly conduct or hide the activity, where the person has a reasonable expectation of privacy and has not consented. Up to two and one half years in a house of correction, or a fine up to $5,000, or both. There is no age element in this paragraph.
• Second paragraph. The same conduct directed at the intimate parts of a person under or around clothing. Same penalty, and again no age element.
• Third paragraph. The intimate parts, under or around the clothing, of a child under eighteen. Up to two and one half years in a house of correction, or up to five years in state prison, or a fine up to $10,000, or both.

The five year state prison exposure therefore attaches to the clothing paragraph, not to the nude or partially nude paragraph. The word nude does not appear in the third paragraph. Photographing a nude minor secretly is charged under the first paragraph at the same house of correction level as an adult complainant. Subsection (c) is dissemination and it does rise: up to five years in state prison for images taken under the first two paragraphs, and up to ten years where the image is of a child under eighteen taken under the third.

Two further points. Section 105 contains no subsequent offense enhancement anywhere in it. And § 105 is not among the offenses enumerated in M.G.L. c. 6, § 178C, so it does not trigger sex offender registration.

The history matters when reading older material. Commonwealth v. Robertson, 467 Mass. 371 (2014), held that § 105 as then written did not reach photographing fully clothed persons. The Legislature responded by adding the under and around clothing paragraphs. Any discussion of the statute drawn from before 2014 describes a different section.

Digitized and Artificially Generated Sexual Images, M.G.L. c. 265, § 43A(b)

The provision that covers artificially generated and digitally altered sexual images is not in chapter 272. SECTION 6 of Chapter 118 of the Acts of 2024 struck and replaced subsection (b) of the criminal harassment statute, M.G.L. c. 265, § 43A. That subsection defines digitization as the creation or alteration of visual material in a manner that would falsely appear to a reasonable person to be an authentic representation of the person depicted, and it punishes knowing distribution of such material where the person is identifiable, the distribution causes physical or economic injury or substantial emotional distress, and it is done with intent to harm or with reckless disregard for the likelihood of harm, the lack of consent, and the reasonable expectation of privacy.

A first offense carries up to two and one half years in a house of correction, a fine up to $10,000, or both. A second or subsequent offense, or an offense following a conviction under M.G.L. c. 265, § 43, carries up to two and one half years in a house of correction or up to ten years in state prison, a fine up to $15,000, or both. The subsection also provides that consent to the creation of visual material is not consent to its distribution, and it contains six exclusions covering commercial and consensual settings, reporting on matters of public concern, and law enforcement, legal and medical practice. The full treatment, including the interaction with the federal statute and the defenses that work in these cases, is on our page covering deepfake and AI generated intimate image charges.

The Evidentiary Rules That Decide These Cases

Most sex offense cases turn on a small number of evidentiary rulings made before the jury hears a word of testimony. A lawyer who litigates those rulings well has done most of the work of the defense.

The First Complaint Doctrine

Commonwealth v. King, 445 Mass. 217 (2005), replaced the old fresh complaint practice. One witness, the person the complainant first told, may testify to the fact of the complaint, the circumstances in which it was made, and its details. The complainant may testify to the same and to why the complaint was made when it was. Testimony from additional complaint witnesses is not admissible. The evidence comes in for one purpose only, to help the jury decide whether to credit the complainant, and it may not be used to prove that the assault occurred. The judge must instruct the jury to that effect when the testimony is given and again in the final charge. King, 445 Mass. at 248.

The doctrine has boundaries that are worth knowing precisely. King itself holds that where neither the occurrence of an assault nor consent is at issue, first complaint evidence serves no corroborative purpose and is not admissible. Where identity is the only contested question, it does not come in at all. Commonwealth v. Murungu, 450 Mass. 441 (2008), allows substitution of a later witness where the first encounter was not a complaint, or where the first listener has an obvious bias or motive to minimize or distort, but it forbids the Commonwealth from selecting among witnesses for the one with the best memory or the most details, and it requires that the original listener’s testimony be struck when a substitute is designated. Commonwealth v. Kebreau, 454 Mass. 287 (2009), permits a second witness only where the two disclosures concern different periods and escalating conduct. Commonwealth v. Arana, 453 Mass. 214 (2009), holds that successive complaints to the same witness are not admissible beyond the first, and that the complainant may not testify that other people were told. Commonwealth v. Aviles, 461 Mass. 60 (2011), retained the doctrine but changed appellate review to abuse of discretion.

The practical work is a motion in limine to designate the witness, a voir dire, an instruction demanded at both points, and close attention at trial to testimony offered on some independent ground that in substance does nothing but repeat that a complaint was made. Arana holds that such testimony is inadmissible.

The Rape Shield Statute, M.G.L. c. 233, § 21B

The statute does two different things and they are often blurred together. Evidence of the reputation of a complainant’s sexual conduct is barred outright, with no exception and no procedure for admitting it. Evidence of specific instances of a complainant’s sexual conduct is barred subject to exactly two exceptions: sexual conduct with the defendant, and recent conduct alleged to be the cause of a physical feature, characteristic or condition of the complainant.

Where an exception applies, the statute requires a written motion, an offer of proof, and a hearing in camera, held outside the presence of the jury. The court admits the evidence only on finding that its weight and relevance outweigh its prejudicial effect to the complainant, and that finding must be in writing, filed, and withheld from the jury. The moving party carries the offer of proof.

The statute is not the end of the analysis. Commonwealth v. Joyce, 382 Mass. 222, 227 (1981), holds that the statute does not sweep so broadly as to exclude evidence of specific instances relevant to show bias, and that where such evidence bears on bias or motive to lie, the rule of exclusion gives way to the right of effective cross examination. Commonwealth v. Jacques, 494 Mass. 739 (2024), is the recent decision that changed the landscape. It holds that a complainant’s prior sexual abuse by a third party is sexual conduct within the statute, which brings it inside the shield, and it holds that the shield must yield where it conflicts with the constitutional right of confrontation. The Court reversed for total preclusion of cross examination where the current allegations and the earlier abuse shared similarities that were unique, specific and striking, while cautioning that repetition of facts likely to occur in most sexual assaults will not clear the statute.

Any § 21B motion should be pleaded in the alternative, under the statutory exception and under Joyce and Jacques, and the constitutional theory has to be built on specific and non generic parallels in the record.

Privileged Records and the Dwyer Protocol

Counseling records, school records, Department of Children and Families records and medical records frequently contain the earliest accounts of what is alleged. Commonwealth v. Dwyer, 448 Mass. 122 (2006), governs how a defendant obtains them, and it replaced the earlier protocol built by Commonwealth v. Bishop, 416 Mass. 169 (1993), and Commonwealth v. Fuller, 423 Mass. 216 (1996).

Under Dwyer the defendant must first satisfy Mass. R. Crim. P. 17(a)(2) as construed in Commonwealth v. Lampron, 441 Mass. 265, 269 to 270 (2004): the documents must be evidentiary and relevant, not otherwise reasonably procurable in advance of trial, necessary to prepare for trial, and the application must be made in good faith and not as a general fishing expedition. Records likely to be covered by a statutory privilege remain presumptively privileged and no judicial finding of privilege is required at that stage. The records are held in court under seal and inspected only by defense counsel of record, who must first sign and file a protective order as an officer of the court barring copying and barring disclosure of the contents to any person, including the defendant. Disclosure beyond counsel requires a hearing, in camera review by the judge where necessary, and findings that copying or disclosure is necessary to prepare adequately for trial, with the judge required to consider alternatives such as stipulations or redaction.

The change from Bishop and Fuller is worth understanding because it changed what a motion has to say. Fuller required a good faith, specific and reasonable basis for believing that the records contained exculpatory evidence that was relevant and material, a showing about content that a defendant who had never seen the records could rarely make. Dwyer moved the gate from a showing about content to a procedural showing under rule 17, and moved the first inspection from the judge to counsel.

The Limits on Expert Testimony

The Commonwealth often calls an expert to explain delayed disclosure, continued contact with the accused, or inconsistent accounts. Commonwealth v. Federico, 425 Mass. 844, 847 to 848 (1997), permits testimony on the general behavioral characteristics of sexually abused children, confined to a description of general or typical characteristics, and permits a medical expert to explain that the absence of physical injury does not lead to a conclusion that no abuse occurred.

Federico imposes three limits. The expert may not refer to or compare the behavior of the specific complainant to those general characteristics. The expert may not opine that the complainant was in fact abused. The expert may not offer a profile of the typical attributes of a perpetrator. Commonwealth v. Quinn, 469 Mass. 641 (2014), closes the obvious workaround: an expert may not opine that a child’s behavior or experience is consistent with the typical behavior or experience of abused children, and testimony is inadmissible where a reasonable jury would think the expert was implicitly vouching for the complainant.

The risk is highest where the expert has examined or treated the complainant. A motion in limine should bar case specific facts, bar hypotheticals that track the complainant’s actual history, bar any formulation using the words consistent with, and bar perpetrator profiles.

Forensic and Digital Evidence

DNA in these cases usually establishes contact rather than the absence of consent, and the question worth litigating is often the chain of custody, the interpretation of a mixture, or the statistical statement the analyst is permitted to make rather than the profile itself. In cases built on phones and computers, the search of the device is where the case is won or lost. Whether the warrant established a nexus between the alleged offense and the device, whether it particularized the data to be seized, and whether the extraction stayed within the scope described are questions our page on phone and computer searches treats in full. Attribution is the second question. A file on a shared device is not proof of who put it there, and in a household with multiple users the metadata, the account activity, and the operating system logs matter more than the file count.

The Defense Work

The defenses available in a sex offense case depend entirely on which statute is charged. Consent is a live question under M.G.L. c. 265, § 22 and no question at all under § 23, where the complainant’s age removes it from the case. Force is an element under §§ 22, 22A, 22B and 22C and is not an element under § 23. A defense built without regard to that distinction is a defense built for the wrong case.

The account itself. Where the case rests on testimony, the work is in the sequence of the disclosures rather than in any single statement. Counsel obtains every version: the first complaint, the police interview, the Sexual Assault Intervention Network interview, the grand jury testimony, the recorded forensic interview of a child, and whatever appears in the records obtained under Dwyer. What matters is not that accounts vary, because accounts always vary, but whether a specific detail entered the account only after someone else supplied it.

Consent under § 22. The Commonwealth must prove both that the act occurred and that the complainant was compelled to submit by force or threat of bodily injury. Those are separate elements and the second is frequently the weaker one. Where the parties knew each other, the messages before and after the encounter are usually the most probative evidence in the case, and they are evidence the Commonwealth does not always collect.

Intent, in the image cases. Sections 29A and 29B both require lascivious intent in their nudity provisions, § 29B covers possession only where the possession is with intent to disseminate, and § 105 requires an intent to secretly conduct or hide the activity. Each of those is a state of mind the Commonwealth must prove from circumstances, and each is a place where a case built on volume of files rather than on conduct can fail.

The pre-arraignment window. Where the complaint arrives by application rather than by arrest, a clerk-magistrate hearing is available, and a denial means no arraignment and no CORI entry. The earlier stage is often the most valuable. Attorney Serpa conducts these examinations without a script.

Title IX and the Parallel Campus Proceeding

For university students at Harvard, MIT, BU, BC, Northeastern, Tufts, and Brandeis, a sexual assault allegation initiates two simultaneous proceedings operating under fundamentally different standards:

• The criminal proceeding: beyond a reasonable doubt, right to counsel, right to confront witnesses, right against self-incrimination
• The Title IX campus proceeding: preponderance of the evidence (51%), reduced due process rights, typically no right to confront witnesses directly, advisor-limited representation

A student can be expelled through the campus process, losing academic standing, housing, and potentially years of tuition investment, before the criminal case is even at a pretrial conference. And statements made in the campus proceeding can be subpoenaed and used in the criminal case. Defense counsel must coordinate both proceedings from the moment of the accusation: refusing to make admissions in the campus proceeding that would be harmful in the criminal case, while also ensuring the student is not unrepresented in a proceeding that can end their academic career before any trial.

The most dangerous scenario: a student who speaks freely to the Title IX investigator believing the campus proceeding is confidential, only to have those statements surface in the criminal case through a prosecution subpoena. The right to remain silent applies in the Title IX proceeding when there is a parallel criminal investigation. Defense counsel must advise the student to limit participation in the campus proceeding until the criminal defense strategy is established.

Sex Offender Registry Board Classification

Classification runs under M.G.L. c. 6, §§ 178C to 178Q, and it is a separate proceeding from the criminal case with its own hearing, its own record, and its own appeal. Section 178K(2) sets three levels. Level 1 is a determination that the risk of reoffense is low and that no public safety interest is served by public availability. Level 2 is a moderate risk with a public safety interest in public availability. Level 3 is a high risk with a substantial public safety interest in active dissemination. Only final level 2 and level 3 classifications are publicly available.

The standard of proof is the point to get right, because the statute still prints the wrong one. Section 178L(2) reads on its face that the hearing officer determines the classification by a preponderance of evidence. That text is no longer the operative standard. Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, 473 Mass. 297 (2015), holds that the Board “is constitutionally required to prove the appropriateness of an offender’s risk classification by clear and convincing evidence,” and the requirement applies at all three levels.

Noe, Sex Offender Registry Board No. 5340 v. Sex Offender Registry Board, 480 Mass. 195 (2018), carries that forward to reclassification. A person seeking a lower level bears a burden of production, some credible evidence that circumstances have changed, but once that is met the Board retains the ultimate burden to prove by clear and convincing evidence that the existing classification is current and correct, and if it fails the person must be reclassified downward. Noe also confirms the statutory right to appointed counsel for an indigent person at a reclassification hearing.

Two deadlines matter. A person must petition for an evidentiary hearing within twenty days of the notice of the recommended classification, and failing to do so waives the hearing and makes the recommendation final. Under § 178G the duty to register generally runs twenty years, and a person may apply to terminate it on proof by clear and convincing evidence of no sex offense in ten years.

Collateral Consequences

Global positioning system monitoring. M.G.L. c. 265, § 47 provides that a person placed on probation for an offense within the definitions in M.G.L. c. 6, § 178C shall wear a global positioning system device as a requirement of any term of probation. The statute has never been amended, and it cannot be applied as written. Commonwealth v. Feliz, 481 Mass. 689 (2019), holds that article 14 of the Massachusetts Declaration of Rights requires an individualized determination of reasonableness before monitoring may be imposed, that the balancing weighs the need for monitoring against the privacy invasion, and that mandatory blanket imposition absent that determination is unconstitutional. Accepting a probation contract containing the condition is not consent.

Commonwealth v. Rodriguez, 494 Mass. 723 (2024), went further and directed the probation department to remove the device from any person already wearing one under § 47 who has not received a hearing under Feliz, and to refrain from attaching one until such a hearing is held. The same decision holds that an exclusion zone covering an entire city operates as a banishment, imposes significant burdens on liberty, and exceeds what § 47 contemplates. The Commonwealth bears the burden at the hearing, and the fees are waivable on a finding of substantial financial hardship.

Dispositions the statute forecloses. Sections 22A, 22B, 22C, 23, 23A, 23B, 13B, 13B1/2 and 13B3/4 of chapter 265, and § 29C of chapter 272, each provide that a prosecution shall neither be continued without a finding nor placed on file. Knowing which of those applies before a resolution is discussed avoids proposing something the court has no power to accept.

Registration is not uniform. A first conviction of open and gross lewdness under M.G.L. c. 272, § 16 does not require registration; only a second or subsequent one does. Indecent exposure under M.G.L. c. 272, § 53, punishable by up to six months or a fine of up to $200, is not a registrable offense at all. Neither is § 105. These distinctions decide whether a case is worth trying.

Immigration and licensing. A sex offense conviction is an aggravated felony or a crime involving moral turpitude for most non-citizens, and the immigration consequences frequently exceed the criminal sentence. An arraignment alone generates a CORI entry that licensing boards and employers see before any adjudication, and for licensed professionals the reporting obligations begin at that point.

Courts Where Serpa Law Office Handles Sex Offense Cases

Sex offense cases begin in District Court or BMC and may be transferred to Superior Court for trial. Attorney Serpa has tried sex offense cases across Massachusetts courts:

• Suffolk Superior Court: where Serpa Law Office obtained a Not Guilty verdict in aggravated rape (Comm. v. KB) and a Not Guilty verdict in aggravated assault and battery with intent to commit rape (Comm. v. JB)
• Middlesex Superior Court: where Serpa Law Office obtained a Not Guilty verdict in rape/date rape and indecent assault and battery (Comm. v. NA)
• Plymouth County Superior Court: where Serpa Law Office obtained a Not Guilty verdict in a joint venture rape case (Comm. v. MR)
• Essex County Juvenile Court: where Serpa Law Office obtained a Not Guilty verdict in a youthful offender life felony sexual assault trial (Comm. v. LF)
• Bristol County District Court: where Serpa Law Office obtained Not Guilty on three counts of indecent assault and battery and intimidation of a witness (Comm. v. RJ)
• Worcester County District Court: Not Guilty, indecent assault and battery (Comm. v. TH)
• BMC Central Division: Not Guilty, photographing an unsuspecting nude person (Northeastern University case, Comm. v. SM)

Contact Serpa Law Office at 617.936.0201 for a confidential consultation. Sexual assault defense requires immediate retention of experienced trial counsel. The investigation that produces the most important defense evidence must begin as close to the alleged incident as possible.

See also: AI-Generated Sexual Imagery and Deepfake Defense, College and University Student Criminal Defense, Illegal Searches and Seizures in Massachusetts, Digital Search Warrants in Massachusetts, and How Massachusetts Courts Authenticate Deepfakes and AI Evidence in 2026.