Massachusetts Senate Gutting Statutory Rape?  Key Legislator Says No, But Family Advocate Wary of Bill

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The Massachusetts Senate has approved a bill that would possibly legalize oral sex and other sex acts between adults and certain minors, although a key legislative leader says that’s not the intent and that it won’t happen.

The Senate late last week passed a bill restating that it’s illegal to engage in sexual intercourse with a minor but removing what the current statute calls “unnatural sexual intercourse.” Courts have held that term to include non-procreative penetrative sex acts.

“The version of the bill passed by the Senate as written makes anal and oral sex with children no longer statutory rape,” said Andrew Beckwith, president of the Massachusetts Family Institute,

But that’s not what legislators intend to do, said state Senator Will Brownsberger (D-Belmont), chairman of the Senate Ways and Means Committee.

“Our intent was to eliminate an archaic language structure,” Bronwsberger said in an interview with New Boston Post.

Some observers object to the word “unnatural” with respect to non-procreative sex acts, on the grounds that it may imply a value judgment.

Brownsberger said he doesn’t know who changed the language of the bill, but that it may have been one of the legislative aides who work with the Senate Ways and Means Committee.

After researching the matter early this week, Brownsberger concluded that Beckwith’s interpretation is correct, and he said legislators will make changes in the bill before it is adopted to make sure that all penetrative sex acts between adults and minors remain defined as statutory rape.

“He is right. Our mistake. And it will be fixed before the bill is finalized,” Brownsberger said.

The simplest way to fix the problem may be to restore the phrase “unnatural sexual intercourse,” Brownsberger said, but final language will be determined later in the process.

The matter came up last week after a reporter from another media outlet called Beckwith about the criminal justice reform bill currently on Beacon Hill. Beckwith often comments on public policy on behalf of the Massachusetts Family Institute, an organization that follows legislation on Beacon Hill and advocates for what it considers pro-family and pro-Judaeo-Christian values.

That press inquiry led Beckwith to research the bill’s so-called Romeo-and-Juliet provision designed to decriminalize sexual behavior between two consenting minors as long as the younger of the two is at least 13 and the older of the two isn’t more than two years older. Currently, state law sets the age of consent at 16, which means that anyone under the age of 16 who engages in consensual penetrative sex acts is technically a victim of statutory rape, even if the other person involved is also underage.

The bill included “sexual intercourse” and “unnatural sexual intercourse” among the banned acts with minors before it went to the Senate Ways and Means Committee, which mirrors current state law.

But Beckwith said that when he examined the bill late last week, he noticed that the version that came out of Ways and Means deleted the phrase “unnatural sexual intercourse.” That’s also the version of the bill that the full Senate approved in the early hours of Friday, October 27.

According to Beckwith, a former federal prosecutor, “sexual intercourse” in law refers to coitus between a male and a female, and not to any other sex acts, which suggests to him that the bill as currently drafted would legalize other sex acts with minors.

He cited a 2000 court case in which a Pembroke man indicted for performing various non-procreative sex acts on his daughter argued that a state incest statute of the time outlawed only “sexual intercourse” between close family members, and not other kinds of sex acts. A judge agreed, dismissing the indictment, and the Massachusetts Supreme Judicial Court upheld the dismissal in the case, known as Commonwealth v. Smith. The state Legislature subsequently amended the incest statute to include other sex acts.

If Beckwith’s reasoning is right, a defendant could similarly beat a statutory rape charge in a case that involved penetrative sex acts other than copulation if so-called “unnatural sexual intercourse” isn’t included in the new legislation.

State Representative Elizabeth Poirier (R-North Attleborough) was a sponsor of the bill in 2002 that expanded the state’s incest statute. In an interview, she said she ran into heavy opposition because certain legislators opposed anything they considered disrespectful of non-heterosexual sexual practices.

“You can’t imagine how I had to fight to get that language in lo those many years ago,” Poirier told New Boston Post.

She said the House Speaker at the time, Thomas Finneran, had her get together in a room with an opposing legislator and a mediator to hammer out language that would be acceptable to both sides.

She said she and other legislators back then were horrified by the Pembroke case, in which the father got away with abusing his daughter because of insufficient language in the statute. So legislators eventually agreed to expand the statute with language that included certain sex acts in addition to sexual intercourse.

“And I think removing it is extremely detrimental,” Poirier said. “I’m very happy that Senator Brownsberger chose to put that back in, because it is appropriate [to cover] acts that adults perform on children short of intercourse, in how we usually think of intercourse.”

Beckwith said he’s not surprised to hear that state legislators don’t intend to legalize certain sex acts between adults and minors, but he suggested the late language change in the bill points to a flaw in the process.

“The Legislature shouldn’t be toying with the statutory rape law at 1:30 in the morning in a 100-plus-page omnibus bill, because stuff like this is going to fall through the cracks … with clerks making changes that have what I would hope are unintended consequences,” Beckwith said.

While the criminal justice reform legislation, known as Senate Bill 2185, has passed the Senate, it has not yet passed the House.

House Speaker Robert DeLeo (D-Winthrop) says he wants the House to pass a bill in November. Since the House’s version will almost certainly differ from the Senate’s, the legislation will likely go to a conference committee. Brownsberger said the bill will go through several more drafts before a final vote, and he said there is time to deal with objections to the language, including Beckwith’s.

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