Some of you may recollect that one of
our former members had a daughter under
the age of 12 had a daughter in the
Key Shelter in Pittsfield, Massachusetts
where the daughter, having the mentality
of a 9 year old, was accosted by an
unwanted lesbian style kiss on the lips
by a 16 or 17 year old that was living
with her. (She was also physically
accosted at school by one of the boys
who lived with her and whacked her in
the face with a game boy.)
The father brought a motion for emergency
relief because the father wanted the
child out of the shelter, and with the
father since the stepfather had apparently
beaten the child. (Her injuries
were taped and she is on tape saying
that her stepfather caused it.)
The father was told he was making a
mountain out of a mole-hill, and the
Probation Office, Pat Garvey, was trying
to hold her smirk at his “over the top”
complaint. Ultimately, the father’s
attorney was fined $500 for a “frivolous”
complaint and was given a humiliating
rebuke about the alleged abuse of restraining
orders.
Now we come to a case called
COMMONWEALTH vs. LUIS VAZQUEZ,
that can be read by clicking
on the case name that is a link to this
recent case.
NOTABLE QUOTES: “Defendant
was found guilty of indecent assault
and battery on a person fourteen years
of age or over, in violation of G.
L. c. 265, § 13H, and indecent assault
and battery on a child under fourteen
years of age, in violation of G. L.
c. 265, § 13B. The charges stemmed
from separate incidents alleged by
two of his wife's nieces, Susan and
Kathy,(1) ages fifteen and twelve,
respectively, at the time of the incidents.
On appeal, the defendant raises two
issues that require discussion. He
contends that his motion for a required
finding of not guilty on the charge
involving Kathy should have been allowed,(2)
because the conduct relied upon by
the Commonwealth -- a brief kiss on
Kathy's mouth involving the defendant's
partially open mouth, but not his
tongue -- did not meet the legal standard
for indecency. . .”
“We conclude that the evidence viewed
in the light most favorable to the
Commonwealth was sufficient to prove
the charge of indecent assault and
battery upon Kathy, because, in
the circumstances, the defendant's
placement of his open mouth upon his
niece's lips could be found to be
an indecent act.
“1. Sufficiency of proof of indecency.
To establish a violation of G. L.
c. 265, § 13B, the Commonwealth was
required to prove beyond a reasonable
doubt that the defendant committed
an intentional, unprivileged, and
indecent touching of a child. Commonwealth
v. Taylor, 50 Mass. App. Ct. 901,
901 (2000). "A touching is
indecent when, judged by the 'normative
standard' of societal mores, it is
'violative of social and behavioral
expectations,' Commonwealth v.
Gallant, 373 Mass. 577, 580-581, 589
(1977), in a manner 'which [is]
fundamentally offensive to contemporary
moral values . . . [and] which the
common sense of society would regard
as immodest, immoral and improper.'"
Commonwealth v. Lavigne, 42 Mass.
App. Ct. 313, 314-315 (1997), quoting
from Commonwealth v. Mosby, 30
Mass. App. Ct. 181, 184 (1991). When
evaluating evidence of alleged indecent
behavior, we consider all of the attendant
circumstances. See Commonwealth v.
Lavigne, supra at 316. See also Commonwealth
v. Rosa, 62 Mass. App. Ct. 622, 626
(2004).”
“The touching in question need not
be restricted to the list of anatomical
parts and areas referred to in Commonwealth
v. Mosby, supra at 184. Commonwealth
v. Castillo, 55 Mass. App. Ct. 563,
566 (2002). In certain circumstances,
the touching of other intimate parts
-- including the mouth and its interior
-- may violate contemporary views
of personal integrity and privacy.
Commonwealth v. Rosa, supra at 625.
Thus, an unwanted kiss on the mouth
has been held to constitute indecent
conduct, at least in circumstances
involving the forced insertion of
the tongue, when coupled with surreptitiousness
and a considerable disparity in age
and authority between the perpetrator
and the victim. Commonwealth v.
Castillo, supra at 566-567 & n.2.
We do not read our cases, however,
as requiring that there always be
tongue involvement for an act that
might be characterized as a kiss to
be found indecent, as other facts
and circumstances may allow the trier
of fact rationally to determine that
the kiss was an indecent act. In the
overall context and circumstances
presented by this case, we think
that the jury reasonably could conclude
that the kiss on Kathy's mouth was
indecent.”
“Focusing solely upon the evidence
of the episode with Kathy, the defendant
contends that a finding of indecency
was not warranted. We agree that in
most situations it would not be appropriate
to criminalize a brief kiss on the
mouth that did not involve the insertion
or attempted insertion of the tongue.
In this case, however, we think that
the kiss could be viewed as having
improper, sexual overtones, "violative
of social and behavioral expectations."
Commonwealth v. Lavigne, 42 Mass.
App. Ct. at 314, quoting from Commonwealth
v. Gallant, 373 Mass. at 589. This
conclusion is supported by the age
difference between the defendant (who
was in his thirties) and Kathy (who
was only twelve), and his position
of familial authority over her when
he asked her for the kiss, as well
as from the evidence that he turned
his head to meet Kathy's lips with
his mouth open to an extent that Kathy
could feel its interior, that the
kiss lasted longer than the usual
peck on the cheek, and that the defendant
behaved surreptitiously, as shown
by his practice of kissing Kathy on
the lips when they were alone, but
on the cheek when there were other
family members present. See Commonwealth
v. Castillo, 55 Mass. App. Ct. at
567.”
******
In
the case of one of our father’s: (1)
the child was not related to the other,
but was in a safe house, (2) the child
had diminished capacity, (3) according
to the child, the perpetrator stuck
her tongue in, and (4) it was a homosexual
kiss, adding to the humiliation.
There
was also no “he-said, she-said” aspect
to this. All parties agree
that the event occurred. It
was just the father that was making
a mountain out of a molehill.
Subpoenas of DSS and the Key Shelter
were wantonly ignored, and the judge
did nothing to enforce them. Custody
of the child remained with DSS in
the Key Shelter, and the court did
nothing. In fact, the father
was fined for a frivolous emergency
motion.
There
was no restraining order on DSS, the
Key Shelter, the Supervisors, or the
perpetrator herself. There were
no other rulings in equity to protect
the child. DSS was not contacted
for further review. The child
was not given to the father, where
the only allegation against him was
years old and never substantiated
in a court of law. What
was the terrible alleged crime of
the father? It was said he asked
the child to hurt his mother years
ago, a fact which the child has denied.
There is no allegation of physical
abuse against the child or of sexual
abuse against the child.
What
was this judge of the Probate and
Family Court you may ask?
Judge
Geoffrion.
IMPORTANT
NOTICE: THE BERKSHIRE FATHERHOOD COALITION
is a group that is now separated and
distinct from THE FATHERHOOD COALITION.
The Berkshire Fatherhood Coalition is
an organization dedicated to promoting
the Father/Child relationship and promoting
gender equality in family law. |