Hate Crimes, Sex Laws and Police in Massachusetts

Sexual orientation and gender identity or expression are protected characteristics under Massachusetts’ hate crimes laws.

Questions & Answers (Accurate as of February 11, 2014)

Hate Crimes & Violence

Does Massachusetts have a hate crimes law?

Yes, Massachusetts has several provisions of law geared toward identifying and punishing hate-motivated violence.61

Most specifically, Massachusetts law contains a “Hate Crimes Penalties Act” which provides stiff penalties for those who:

  • commit an assault or a battery; or, cause damage to a person’s real or personal property
  • with the intent to intimidate a person because of sexual orientation, or gender identity, as well as “race, color, religion, national origin or disability.”62

Massachusetts also has a criminal law which punishes those who:

  • by force or threat of force,
  • willfully injure, intimidate, interfere with (or attempt to do so), or oppress or threaten a person
  • in the free exercise or enjoyment of any right or privilege secured to them under state or federal constitutions or laws59. The penalties are higher when force is used than when it is not. 64

There are also specific laws concerning vandalism of personal property, homes, and sites of religious worship which are beyond the scope of this document.

In a typical hate crimes case, both sections 37 and 39 are charged, along with another criminal statute (such as assault and battery, or assault and battery with a dangerous weapon, or assault with intent to murder and maim). Sometimes it is easier to prove a violation of section 37 than section 39 so both are charged. (Section 37 requires proving only a willful interference with a person’s secured rights, whereas a successful prosecution under section 39 requires that the motivation behind an attack was a particular characteristic of the victim).

In order to track hate crimes, the State has also set up a reporting system so that incidents alleged are centrally recorded65.  To enter an incident of hate violence into the statistics, contact the Violence Recovery Program at Fenway Community Health, (800) 834-3242.

How does the law define what is a hate crime?

Under state law, a “hate crime” is “any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender, sexual orientation, or gender identity prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation.” 66 It also includes any violation of several other laws.

Technical definitions aside, law enforcement officials and others tend to use the following as guideposts for determining whether or not a crime is an anti-gay hate crime.

  • Did the attacker use anti-LGBT language or epithets?
  • Was the victim in an area associated with LGBT people (e.g. outside a gay bar or a cruising area)?
  • Have there been similar crimes in the area?
  • Did the attack occur regardless of economic motive (i.e., person attacked but not robbed)?67

Where can I call if I think I’ve been a victim of a hate crime?

In addition to contacting the local police, you may contact the Criminal Division of the Attorney General’s office at (617) 727-2200. Be sure to explain all of the factors that make you think this was a crime of bias.

For support and advocacy, contact the Violence Recovery Program at Fenway Community Health. In addition to short term counseling for victims, their professional advocates help people understand and navigate the criminal system from police reporting to obtaining injunctions to the various appearances and hearings of the court process. Their phone number is (800) 834-3242.

What other options do I have if I think I have been the victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, or instead of going that route if there was no force or threat of force in your case, you may seek a “civil rights injunction” from the Superior Court.

A civil rights injunction is a protection order issued by the court, and typically forbids a person or persons from coming near you (or your home, or school, or workplace, or from telephoning you) because they have been determined to be threatening to you. To obtain an injunction, you must show that the person interfered or attempted to interfere with the exercise of your secured rights by using threats, intimidation or coercion. This is not always as easy as it sounds.

You can seek a civil rights injunction with your own lawyer, or you can ask the Attorney General to do so on your behalf68. The Attorney General’s Office, Civil Rights Unit, is found at (617) 727-2200, but cannot fulfill all of the requests it receives. In an action you bring on your own, you may also seek compensatory money damages and an award of attorneys’ fees.

A violation of a civil rights injunction is itself a criminal offense. The penalties for a violation are greater when bodily injury results from the violation than when it does not.69

For further information see GLAD’s publication, Anti-LGBT Violence and Harassment, at www.glad.org/uploads/docs/publications/Anti-LGBT-Harassment-Violence.pdf

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

 

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act70 was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

  • investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
  • grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
  • grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

  • where the offender(s) has committed crimes in more than one state, or
  • that occur in rural areas which do not have the resources needed to prosecute such crimes.

 

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.  The Federal Bureau of Investigation (FBI) encourages victims of hate crimes to make a report to the FBI as well as local and state authorities.  The Boston field office of the FBI can be reached at 617-742-5533.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Does Massachusetts have a law to protect people who are being harassed or threatened?

Effective May 10, 2010, a law went into effect that provides the opportunity for persons who are victims of harassment to obtain a restraining order without needing a dating or close family relationship to the perpetrator, as is required to obtain a Domestic Violence Restraining Order (see above).  The new law, Chapter 258E of the General Laws, provides for the victim to be able to petition his/her local court (district court, superior court, Boston Municipal Court or juvenile court—if both the victim and harasser are under 17 years of age) to issue the Harassment Prevention Order. 

No filing fees or fees for certified copies of the order are charged, but there may be other court costs.  In emergency situations after the court is closed, you can get a temporary order from the police, but you will still have to appear in court the next business day.  Filing for a Harassment Prevention Order does not preclude pursuing other civil or criminal remedies, but you must disclose any prior or pending actions with the harasser when you file your complaint.

What do I need to show in order to get a Harassment Prevention Order?

You need to document:

  • the harasser committed three or more acts against you of willful and malicious conduct that caused fear, intimidation, abuse or damage to property; or
  • the harasser forced you to involuntarily engage in sexual relations; or
  • the harasser violated any of the criminal laws in Chapter 265 that pertain to sex with a minor, indecent assault and battery, rape, stalking or the law in Chapter 272 that deals with drugging for sexual intercourse.

What measures can the court take to protect the victim from future harassment?

The court may first issue a temporary Harassment Prevention Order for up to 10 days to protect the victim which may include instructing the harasser:

  • to refrain from abusing or harassing the victim,
  • to refrain from contacting the victim,
  • to stay away from the victim’s home or workplace, and
  • to pay the victim monetary compensation for the losses suffered as a direct result of the harassment.

How does the victim extend the temporary order?

After granting the temporary order, the harasser must be notified and be given an opportunity within 10 days to appear in court and to be heard on the question of continuing the temporary order.  If the harasser does not appear, the temporary order will automatically be extended.  The court can extend the Harassment Prevention Order for up to a year.  At the expiration of the order, the victim can petition the court to provide another extension.  The court may modify the order at any time based upon a petition from either party.

What happens if the harasser violates the Harassment Prevention Order?

Violation of the order is a criminal offense punishable by a fine of not more than $5,000 or by imprisonment of not more than 2 ½ years, or both.

What if I have a protection order issued by another jurisdiction?

Provided the victim presents the appropriate Massachusetts court with a certified copy of the protection order and a sworn affidavit that the order is presently in effect as written, the protection order will be enforced in Massachusetts for as long as the order was in effect in the issuing jurisdiction.

For more detailed information about hate crimes, violence and harassment, see GLAD’s publication, Anti-LGBT Violence and Harassment in Massachusetts, at www.glad.org/uploads/docs/publications/Anti-LGBT-Harassment-Violence.pdf .

Criminal Sex Laws

Does Massachusetts have a sodomy law?

Although Massachusetts has had two sodomy laws on the books since before its statehood, the Supreme Judicial Court has now said (most recently in 2002) that neither law applies to private, consensual, adult conduct.71

The first of the two laws challenged in GLAD’s case is a more “traditional” sodomy law in that it prohibits anal sex and bestiality.72 It can be applied to anal sex between gay or non-gay people, but has often been associated in the public mind with gay men.
 
The second of the two laws challenged is also a felony which covers “unnatural and lascivious acts.”73 The courts have ruled that this law encompasses “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body.”74

As a result of GLAD’s case, there are no general criminal proscriptions against adults engaging in particular types of consensual, intimate activity, only a range of laws directed at prohibiting public acts of intimacy.

In a separate, similar ruling in 2003, the U.S. Supreme Court ruled that it is unconstitutional to apply sodomy laws to non-commercial sex between consenting adults in private.75

But how do I know whether the place where I am engaged in sexual intimacy is “private”?

That is the million-dollar question: what is “private”?  For the most part, what happens in the privacy of your own home should be no concern of the police. Most people arrested for sexual activity are arrested for activity occurring out of doors. The courts have ruled several times that sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands. It all depends on the circumstances.

In order for the conduct to be “public,” it must be in a place where it is reasonably foreseeable that unsuspecting members of the public will come by at the time and place in question. When the participants act in deliberate disregard of that risk, whether or not they are discovered by the police or another person, their conduct is considered “public.”  Or stated another way, if people have secreted themselves behind remote bushes or beyond fences —  a place where the individual does not know or reasonably expect the presence of persons who would be offended by the conduct —  then there should be no realistic danger to the public. The criminal sex laws are “not designed to punish persons who desire privacy and take reasonable measures to secure it.”76

Why do people get arrested for sex outdoors if it can be considered “private”?

The Commonwealth has a legitimate law enforcement interest in protecting the general public from open displays of sex —  whether the sex is between people of the same-sex or of a different-sex. But socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs. No one should be arrested or hassled for foot-tapping, hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business. For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas — sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with either of the sodomy laws discussed above, or any other of a variety of sex offenses, some of which may require the person to register as a “sex offender.”

GLAD has challenged these practices by many police departments, and has sometimes helped to develop more constructive policing practices, such as with the MBTA. Due to a court case filed by GLAD, the Massachusetts State Police have issued training bulletins to all Troopers informing them of the limits of the sex laws in Massachusetts.

Does Massachusetts have any other criminal laws that are applied to gay people?

There are numerous laws addressing public sexual activity, any number of which can be charged against a person arrested for having sex in “public.” These include “open and gross lewdness and lascivious behavior,” a felony involving public exposure of the genitals77, (the Massachusetts Supreme Judicial Court has established the elements the prosecution must prove beyond a reasonable doubt in order to obtain a conviction under this statute),78 as well as “lewd and lascivious behavior,” a misdemeanor.79  When an undercover police officer has been touched by someone, the individual can be charged with “indecent assault and battery on a person over age 14, another felony.80  Often, both of these are charged. Sometimes, police will also charge trespass or disorderly conduct, which are both misdemeanors. Occasionally, charges will also include a violation of section 34 or 35. If you are being charged with a violation of section 34 or 35, please contact GLAD.

Does Massachusetts have a “sex offender registry” type of law?

Yes. Every state now has such a law, although the terms differ from state to state. In Massachusetts, the law has been tied up in legal challenges and has been redrafted several times. GLAD successfully challenged one version of the law because of our concerns that it denominated as sex offenders people whose only “crime” was consensual adult sex or touching an undercover police officer.81

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children. However, a conviction for indecent assault and battery on a person over 14 is still a “sex offense” in some circumstances82,  as is a “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior,”83 For a full list of sex offenses, see Mass. Gen. Laws, chap. 6, sec. 178C.

What if I got a continuance without a finding? Or what if my conviction is very old?

The law only applies to people who were convicted (or “adjudicated” as a youthful offender) after August 1, 1981, or were still incarcerated, on parole or probation, or in civil commitment as of that date. So if you received a continuance without a finding, that is NOT a conviction and the law does not apply to you.

How can I find out of what charges I have been convicted?

You can contact your local police, or call the Criminal History Systems Board at (617) 660-4600 to request a form to get your criminal records. You need to fill out the form, have it notarized, and then send it back to CHSB, 200 Arlington St., Suite 2200, Chelsea, MA 02150.

What obligations are imposed on “sex offenders”?

Most sex offenders will have to register annually with the Sex Offender Registry Board and provide personal data, work information, and other identification. Depending on the circumstances, some or all of this information may be made available to the public.

Based on case law there is legal precedent supporting your right to a hearing before you are compelled to register for non-violent offenses — such as the offenses listed above. The 1999 version of the law acknowledges that the law will sweep in some people who are not dangerous and predatory sex offenders. It has set up several systems allowing for petitions or hearings to relieve such persons from the obligation of re-registering and having the information about them stricken from the system. For more information, contact an attorney.

Where can I get help if I have been convicted of a crime that qualifies me as a “sex offender”?

Because of the strict time deadlines involved in contesting the need to register at all and the classification of one’s dangerousness, get an attorney right away. Call GLAD Answers for a referral.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16. Mass. Gen. Laws, chap. 265, sec. 23. However, there is some confusion about the age of consent for anal sex and oral sex with case law questioning whether the age of consent for such acts is 18.84

Police Harassment

I am often told by police to “move along” from public areas. Is that legal?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone, and are likely also places of public accommodation to which non-discrimination rules apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.85

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered — whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason — should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other person.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly nor implicitly assert that the person must respond to their inquiries.86 Even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested.87

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.88 An arrest can only occur upon “probable cause” that a crime has been committed.89

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers. Call GLAD if you need to find out how to make a complaint to the local police.

Complaints to the Massachusetts State Police may be made to State Police Headquarters, c/o Personnel Investigations, 470 Worcester Rd., Framingham, MA 01702. You can request a form SP 340 from any barracks. According to State Police Regulations (ADM-14, Jan. 14, 2000), a complainant shall be notified of the receipt of the complaint, and the steps to be taken, be given a status report when requested, and be notified of the final disposition of the case.  You may want to contact the Massachusetts State Police LGBT Community Liaison, Lt. Mary E. Ritchie, at 508-988-7003 before you submit your complaint.

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit — because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also register serious complaints with the Attorney General’s Office, Civil Rights Division.

Footnotes

61 Massachusetts also has a “criminal harassment” statute, Mass. Gen. Laws, chap. 265, sec. 43A, which targets any willful and malicious pattern of conduct or series of acts directed at a specific person, seriously alarming that person, and causing any reasonable person to suffer substantial emotional distress.  It could apply to homophobic statements directed against a person.  See Com. V. Welch, 444 Mass. 80 (2005).
62 Mass. Gen. Laws, chap. 265, sec. 39.
63 Mass. Gen. Laws, chap. 265, sec. 37.
64 See also Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 123-24 (1987)(section 37 applies to hate-motivated harassment and violence).
65 See Mass. Gen. Laws, chap. 22C, secs. 32-35.
66 Mass. Gen. Laws, chap. 22C, sec. 32.
67 See generally Mass. Gen. Laws, chap. 22C, sec. 33; 501 Code of Mass. Regs. sec. 4.04(1) (Hate Crimes Reporting Classification Criteria).
68 Mass. Gen. Laws, chap. 12, sec. 11H (actions by Attorney General); chap. 12, sec. 11I (actions by private individuals).
69 Mass. Gen. Laws, chap. 12, sec. 11J.
70 See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111X7TYvf:e1999565.
71 See GLAD et al. v. Reilly et al., 436 Mass. 132 (2002).
72 Mass. Gen. Laws, chap. 272, sec. 34 (“crime against nature”).
73 Gen. Laws, chap. 272, sec. 35.
74 Comm. v. Gallant, 373 Mass. 577, 585 (1977).
75 See Lawrence & v. Texas, 539 U.S. 558 (2003).
76 Commonwealth v. Ferguson, 384 Mass. 13 (1981),—even if a police officer finds them.  Comm. v. Nicholas, 40 Mass. App. Ct. 255, 258 (1996).
77 Mass. Gen. Laws, chap. 272, sec. 16.
78 See Commonwealth v. Kessler, 442 Mass. 770, 773 n.4 (2004).
79 Mass. Gen. Laws, chap. 272, sec. 53.
80 Mass. Gen. Laws, chap. 265, sec. 13H.
81 Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007 (1997).
82 Mass. Gen. Laws, chap. 272, sec. 13H.
83 Mass. Gen. Laws, chap. 272, sec. 16.
84 Comm. v. Zeitler, 7 Mass. App. Ct. 543 (1979).
85 Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950)(sauntering and loitering in public places is right of every person); Benefit v. City of Cambridge, 424 Mass. 918 (1997)(streets and other public areas are “quintessential public forums” for expression); Kent v. Dulles, 357 U.S. 116, 126 (1958).
86 Commonwealth v. Murdough, 428 Mass. 700 (1999).
87 Murdough, 428 Mass. at 703; Alegata v. Commonwealth, 353 Mass. 287, 300-01, 231 N.E.2d 201 (1967).
88 Murdough, 428 Mass. at 763, Terry v. Ohio, 392 U.S. 1, 16 (1968).
89 Murdough, 428 Mass. at 703.