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SJC-12395

J.H. vs. COMMONWEALTH.

Suffolk. December 7, 2017. - April 12, 2018.

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

Juvenile Court, Delinquent child. Practice, Criminal, Juvenile 

delinquency proceeding, Transfer hearing, Lesser included 

offense, Delay in commencement of prosecution. Due Process 

of Law, Notice. Notice. Rape.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on July 3, 2017. 

The case was reported by Lenk, J. 

Thomas A. Dougherty, III, for the juvenile.

Stacey L. Gauthier, Assistant District Attorney, for the 

Commonwealth.

Afton M. Templin, for Youth Advocacy Division of the 

Committee for Public Counsel Service, amicus curiae, submitted a 

brief.

KAFKER, J. A single justice of the county court reserved 

and reported this case involving the transfer of certain charges 

from the Juvenile Court to adult court pursuant to G. L. c. 119, 

§ 72A. In September, 2014, juvenile delinquency complaints were 
2

issued against the defendant for the crime of rape of a child 

with force (three counts) arising out of incidents that occurred 

seven years earlier when the defendant was sixteen years old and 

the complainant was thirteen years old. Because the defendant 

was not "apprehended" according to the statute until after his 

nineteenth birthday, he could not be tried in the Juvenile 

Court. The judge was faced with discharging the defendant or 

transferring the charges to adult court. After a hearing she 

dismissed the offenses charged for lack of probable cause but 

transferred the lesser included offenses, statutory rape. The 

defendant filed a petition for relief in the county court 

pursuant to G. L. c. 211, § 3.

In her reservation and report, the single justice posed two 

questions to the full court:

"1. Whether G. L. c. 119, § 72A, permits a Juvenile 

Court judge, who has dismissed an offense charged for lack 

of probable cause, to order a defendant to be tried in an 

adult court for lesser included offenses, where the lesser 

included offenses are supported by probable cause.

"2. Whether, if the statute so permits, its 

application against this defendant would be 

unconstitutional for failure to have provided him with 

proper notice of the charges pending against him or the 

possibility of such a transfer."

We conclude that G. L. c. 119, § 72A, permits a Juvenile 

Court judge to transfer lesser included offenses where supported 

by probable cause even where lesser included offenses are not 

expressly charged. In instances where a judge finds no probable 
3

cause of the crime charged but does find probable cause of a 

lesser included offense, however, the judge must give a 

defendant a meaningful opportunity to present evidence and 

argument as to why discharge, rather than transfer, of the 

lesser included offense is consistent with protection of the 

public. We also emphasize that where the charged offense is 

rape of a child with force and the lesser included offense is 

statutory rape involving consensual sexual relations between 

teenagers, the issues presented regarding transfer or discharge 

and the protection of the public are quite different. 

Here, where the judge did not inform the defendant of her 

probable cause rulings on the offenses charged or the lesser 

included offenses until her decision on the transfer itself, we 

conclude that the defendant was not given a meaningful 

opportunity to present evidence and argument why discharge and 

not transfer of the statutory rape charges was consistent with 

protection of the public. The defendant is therefore entitled 

to reopen the transfer hearing in order to present such evidence 

and argument. Lastly, we conclude that there is no merit to the 

defendant's contention in posthearing briefing that the sevenyear delay in prosecution was done in bad faith.1

 

1 We acknowledge the amicus brief submitted by the youth 

advocacy division of the Committee for Public Counsel Services.
4

1. Background and prior proceedings. In June and July of 

2007, the defendant was sixteen years old and the complainant 

was thirteen years old. As summarized by the Juvenile Court 

judge at the transfer hearing, the complainant described three 

incidents in detail, in which she alleged that she and the 

defendant engaged in sexual intercourse.

In October, 2007, the investigation was referred to the 

Plymouth County district attorney's office. The complainant's 

mother advised the district attorney's office that the 

complainant did not wish to participate in a prosecution at that 

time. As a result, the investigation was closed.

The investigation was reopened in April, 2009, when the 

complainant was fifteen years old. At that time, the 

complainant agreed to participate in a sexual assault interview. 

The complainant again decided not to pursue the matter because 

she thought that the defendant "eventually wanted to be with 

[her], and at that time [that] is what [she] wanted" and "didn't 

want [the defendant] to be in any trouble."

In 2014, the investigation was reopened for the third time, 

when the complainant, then twenty years old, presented herself 

at the Middleborough police department and indicated a desire to 

go forward with the case.

The defendant was not apprehended, for the purposes of 

G. L. c. 119, § 72A, until 2014, when he was twenty-three years 
5

old. Complaints issued in the Plymouth County Division of the 

Juvenile Court Department against the defendant for three counts 

of rape of a child with force in violation of G. L. c. 265, 

§ 22A. The defendant was subsequently arraigned on the 

complaints in the Juvenile Court.

In 2016, pursuant to G. L. c. 119, § 72A, a judge in the 

Juvenile Court held a transfer hearing. The complainant

testified as described above. After the evidence had closed, 

the prosecution conceded that there was insufficient evidence of 

force on only one of the charges and sought, for the first time, 

a probable cause finding and transfer of the lesser included 

offense of rape of a child (statutory rape). The defendant 

objected. 

In the defendant's argument against transfer, which was 

focused on disproving the element of force, defense counsel 

objected to the lesser included charge being considered where 

the Commonwealth had not charged him with statutory rape. He 

argued:

"I don't have a lesser included offense in front of me of 

the statutory rape, and this is a probable cause hearing. 

And I'm not sure that the [c]ourt can modify the complaints 

at this time to include a lesser included offense of 

statutory rape. The Commonwealth could have [pleaded] that 

but didn't. They could have amended over the last two 

years or actually since 2007 but didn't. They elected to 

proceed, your Honor, with these particular charges, and I 

would argue I think the [c]ourt may be bound by what it has 

on the four corners before it."
6

At the conclusion of his argument, defense counsel returned 

briefly to the issue of statutory rape as a lesser included 

offense. He argued that there was no probable cause to support 

a finding of statutory rape, and if the judge found that there 

was, the judge should nevertheless discharge the defendant and 

not cause a criminal complaint to issue, as the defendant and 

the complainant were both just teenagers "experimenting with 

their sexuality."

Without addressing the objection or otherwise alerting the 

defendant that she intended to consider the lesser included 

offenses, the judge thereafter issued a decision in which she 

found insufficient evidence to establish probable cause for rape 

of a child with force on any of the charges but found sufficient 

evidence to establish probable cause for statutory rape on all 

three charges. She also found that it was in the public 

interest that the defendant be tried for such offenses, 

concluding that "[t]he nature of a complaint for rape and abuse 

of a minor militates in favor of binding the [d]efendant over 

for trial as an adult". She then dismissed the juvenile 

complaints and bound the defendant over for trial in adult court 

for the lesser included offenses of statutory rape.

2. Discussion. a. Transfer of a lesser included offense

not expressly charged. General Laws c. 119, § 72A, provides:
7

"If a person commits an offense or violation prior to his 

eighteenth birthday, and is not apprehended until after his 

nineteenth birthday, the court, after a hearing, shall 

determine whether there is probable cause to believe that 

said person committed the offense charged, and shall, in 

its discretion, either order that the person be discharged, 

if satisfied that such discharge is consistent with the 

protection of the public; or, if the court is of the 

opinion that the interests of the public require that such 

person be tried for such offense or violation instead of 

being discharged, the court shall dismiss the delinquency 

complaint and cause a criminal complaint to be issued. The 

case shall thereafter proceed according to the usual course 

of criminal proceedings and in accordance with the 

provisions of [G. L. c. 218, § 30,] and [G. L. c. 278, 

§ 18]. Said hearing shall be held prior to, and separate 

from, any trial on the merits of the charges alleged."

The defendant argues that G. L. c. 119, § 72A, does not allow 

the transfer of a lesser included offense that was not charged 

in the complaint. We disagree.

It is well established that statutory rape is a lesser 

included offense of rape of a child with force. See

Commonwealth v. Thayer, 418 Mass. 130, 132 (1994) ("statutory 

rape in G. L. c. 265, § 23, is a lesser included offense within 

the forcible rape of a child under sixteen years of age within 

G. L. c. 265, § 22A" [footnote omitted]); Commonwealth v. 

Licciardi, 387 Mass. 670, 673 (1982) (jury "could return a 

verdict of guilty of statutory rape, a lesser included offense 

within the rape indictments"); Commonwealth v. Franks, 365 Mass. 

74, 78 (1974) ("crime of statutory rape . . . is a crime 

included within the crime of forcible rape . . . which was 

charged in the indictment"); Commonwealth v. Harris, 74 Mass. 
8

App. Ct. 105, 110 (2009) ("the crime with which the defendant 

was charged was rape of a child by force, as to which rape of a 

child is a lesser included offense"). It is also well

established that a defendant may be convicted of a lesser 

included offense even if the lesser included offense is not 

expressly charged. See, e.g., Commonwealth v. Walker, 426 Mass. 

301, 303 (1997); Commonwealth v. Keane, 41 Mass App Ct. 656, 661 

(1996).

We have specifically applied these principles in the 

transfer hearing and statutory rape context as well. In 

Commonwealth v. Williams, 427 Mass. 59, 59 (1998), we held that 

a Superior Court judge could accept a guilty plea and impose a 

sentence on a lesser included offense of statutory rape where 

the defendant's case was transferred from the Juvenile Court 

only on the greater and more serious offense of forcible rape. 

We reasoned that even though the lesser included offense was not 

specifically charged, the "legislative intent that such lesser 

included offenses are part and parcel of the transfer hearing 

process may fairly be presumed." Id. at 62. We therefore 

conclude in answer to the first reported question that G. L. 

c. 119, § 72A, permits a Juvenile Court judge, who has dismissed 

offenses charged for lack of probable cause, to cause a criminal 

complaint to be issued for lesser included offenses, where the 

lesser included offenses are supported by probable cause and the 
9

interests of the public require that the defendant be tried for 

the lesser included offenses.

b. Notice. The second reported question asks us to 

address whether the transfer of lesser included offenses in this 

case was unconstitutional because this defendant was not 

provided with "proper notice." As explained infra, we conclude 

that although the defendant had notice of the lesser included 

offenses, he did not have a meaningful opportunity to be heard 

before the transfer occurred.

Individuals in the Juvenile Court have a constitutional due 

process right to "essential fairness." Commonwealth v. Wayne 

W., 414 Mass. 218, 223 (1993). Included in that right is 

adequate notice. In re Gault, 387 U.S. 1, 33 (1967); 

Commonwealth v. Olivo, 369 Mass. 62, 68 (1975) (form of notice 

provided must be reasonably calculated to give actual notice of 

proceedings and opportunity to be heard). Here, the defendant 

was on notice, as a matter of law, that statutory rape was a 

lesser included offense of rape of a child with force, and that 

lesser included offenses are "part and parcel" of the transfer 

process, and thus there was a possibility of transfer of the 

statutory rape charges. Williams, 427 Mass. at 62. See Franks, 

365 Mass. at 78. This, however, is not the end of the inquiry.

As evidenced by this case, Juvenile Court judges must make 

difficult, discretionary decisions regarding whether to transfer 
10

an offense or discharge a defendant. These decisions require

consideration of the specific crime and the particular 

defendant. A thoughtful presentation by defense counsel

directed at both issues is thus critical. See J.D. Blitzman & 

K.J. King, Hearings Pursuant to G. L. c. 119, § 72A: "Aging 

Out" of the System, in 1 Massachusetts Juvenile Court Bench Book 

§ 12, at 12-11 (Mass. Cont. Legal Educ. 3d ed. 2011 & Supp. 

2014) ("[Advocates] must provide the court with adequate 

information to place the alleged offending behavior into a 

developmental context and to allow the court to understand how, 

if at all, the defendant's more mature development reduces the 

risk of reoffense. A reliable determination of the significant 

issues that confront a judge in proceedings under this statute 

can be made only if all relevant developmental and contextual 

evidence is before the court"). Proper notice is essential to 

such a presentation. See Commonwealth v. Bousquet, 407 Mass. 

854, 860 & n.3 (1990) (transfer proper where counsel on notice 

of nature of hearing and "had a sufficient basis to conclude 

that the interests of the public required transfer"). We 

therefore conclude that where a judge finds no probable cause to 

believe the defendant committed the crime charged, but does find

probable cause to believe the defendant committed a lesser 

included offense, the judge must provide the defendant notice of 

that decision and give the defendant a meaningful opportunity to 
11

present evidence and argument as to why discharge of the 

defendant is consistent with the protection of the public and 

thus transfer of the lesser included offenses is not required.

In the instant case, the issue of lesser included offenses 

was not raised by the prosecutor until after the close of 

evidence and only after conceding that there was insufficient 

evidence of force on one of the charges. The defendant objected 

to this development, and the judge did not address the objection 

or state her view regarding whether she would consider 

transferring only the lesser included offenses until she issued 

her decision. Consequently, when defense counsel made his 

argument regarding transfer, he was not informed that the judge 

had decided that there was not probable cause to support the 

rape of a child with force charges but that there was probable 

cause to support the lesser included offenses of statutory rape. 

As we conclude that the defendant is entitled to be so notified 

in order to be given a meaningful opportunity to present 

evidence and argument directed at why transfer of the lesser 

included offenses of statutory rape was not required, we reverse 

and remand. 

The specific facts and crimes at issue reveal the 

importance of such notice and opportunity to be heard. The 

protection of the public "interests" analysis differs

significantly for rape of a child with force and statutory rape
12

when considering teenage sexual activity. A teenager who 

forcibly rapes another presents a greater public safety risk 

than a teenager engaged in consensual sexual activity with a 

peer.2 As sexual activity among teenagers is common, even the 

original decision to prosecute often depends on whether the 

sexual activity is consensual or coerced.3 

 

2 Compare Commonwealth v. Sullivan, 78 Mass. App. Ct. 631, 

631–632 (2011) (teenage victim forcibly raped by teenage 

codefendant while teenage defendant held victim down by her 

shoulders), with Doe v. Attorney General, 430 Mass. 155, 164 

(1999) (in cases involving consensual sexual activity between 

teenagers and requirement of sex offender registration, State's 

interest in protecting children not as great because risk of 

reoffense may be minimal and present danger not significant).

3 See generally Commonwealth v. Bernardo B., 453 Mass. 158, 

161 (2009) (emphasizing in statutory rape case that 

"Commonwealth has broad discretion in deciding whether to 

prosecute a case"). See Centers for Disease Control and

Prevention, Substance Use and Sexual Risk Behaviors Among Teens 

(2017), https://www.cdc.gov/healthyyouth/substance-use/pdf/dashsubstance-use-fact-sheet.pdf [https://perma.cc/Z4H6-TL9P]

("According to the 2015 National Youth Risk Behavior Survey 

. . . [forty-one per cent] of high school students have . . . 

had intercourse and [thirty per cent] of high school students 

are currently sexually active"). See also High, Good, Bad and 

Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape 

Laws Against the Protected Class, 69 Ark. L. Rev. 787, 808 

(2016) (describing common practice of "prosecutorial discretion 

. . . exercised to exclude sexual activity among adolescents 

from the reach of legal regulation unless it appears to be 

exploitative"); Oberman, Regulating Consensual Sex with Minors: 

Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 750 

(2000) (describing "an apparent consensus among prosecutors 

against enforcement of statutory rape laws in cases of 

'consensual sexual relationships' among peers").
13

The judge's decision finding no probable cause of rape of a 

child with force, but probable cause of statutory rape, 

therefore fundamentally changed the protection of the public

"interests" calculus. Further complicating the public interest 

analysis in the context of consensual teenage sexual relations, 

the complainant's own decision to proceed expressly depended at 

least at one point on whether the defendant "eventually wanted 

to be with [her]." Finally, if the defendant were tried as an 

adult seven years after the offense, the consequences of a 

statutory rape conviction would not be a finding of delinquency 

but the possibility of a life felony. Both the defense counsel 

and the judge should have been carefully focused on all of these 

issues. 

Without having the benefit of the judge's decision on 

probable cause, however, defense counsel chose to focus his 

argument on the more serious charges of rape, for which he had a

strong defense.4 Indeed, defense counsel addressed the lesser 

 

4 For the defendant, the case also changed dramatically once 

the prosecutor sought to transfer statutory rape as well as rape

of a child with force charges. The defendant had not testified 

at the hearing. On the issue of force, the defendant could rely 

on the complainant's testimony alone, which described none. But 

once the prosecution expressed its intentions to proceed on 

statutory rape charges, the defendant was in an evidentiary 

bind. With statutory rape charges being sought, the 

complainant's testimony was now sufficient and unrebutted. That 

being said, the complainant's testimony alone provided probable 

cause to proceed on the statutory rape charges. The difficult 
14

included offenses of statutory rape only in passing, including

the critical and complicated discretionary issue whether the 

court should discharge the defendant, even if there was probable 

cause to support the lesser included offenses.

In sum, the defendant is entitled to reopen the transfer 

proceedings to present evidence and argument on whether

discharge is consistent with the protection of the public.

c. Delay in apprehension. In posthearing briefing 

requested by the parties and allowed by the judge, the defendant 

argued that the delay in prosecuting the case was "done in bad 

faith." As we discern no indicia of bad faith from this record, 

and the timing of the prosecution appears directly connected to 

the complainant's willingness to proceed, we conclude that this 

argument has no merit. See Commonwealth v. Mogelinski, 473 

Mass. 164, 171-172 (2015).

3. Conclusion. For the reasons set forth above, we 

conclude that the judge did not err in determining that, lesser 

included offenses could be transferred under G. L. c. 119, 

§ 72A, and that the defendant was on notice as a matter of law

that such a transfer was a possibility. We conclude, however, 

that where a judge finds no probable cause of the crime charged, 

but does find probable cause of a lesser included offense, the 

 

issue, requiring further proceedings, is not probable cause but 

the discretionary decision to transfer or discharge. 
15

judge must give the defendant a meaningful opportunity to 

address why discharge rather than transfer of the lesser 

included offense is consistent with the protection of the 

public, and that such opportunity was not provided here. 

We remand the matter to the single justice of the county 

court where an order of remand to the Juvenile Court shall issue 

for further proceedings consistent with this opinion.

So ordered.