457 Mass. 64
Attempt, Indecent Assault and Battery
Prior to the defendant’s trial the Superior Court judge reported the case to the Appeals Court, along with two questions concerning the charge:
“Does an indictment alleging an attempt to commit the crime of indecent assault and battery charge a felony offense that is cognizable under the laws of the Commonwealth? If not, is the indictment a nullity or is it one which should be read to charge a misdemeanor of assault or another offense?”The defendant argued that the answer to the first question must be, “No”. The defendant claimed there is no crime of “indecent assault” in either the common law or in the statutes, citing Commonwealth vs. Eaton, 2 Mass.App.Ct. 113 (1974), and he further contends that because the crime of “indecent assault” does not exist, that the crime of “attempted indecent assault and battery” cannot exist either. The SJC transferred the case to their court and conclude the answer to the first question is, “Yes,” and that being so there is no need to consider the second question.
In answering this question the court distinguished the present case from Eaton because in that case the defendant was charged with the substantive crime of indecent assault and battery, while in the present case the defendant was being charged with a crime under the attempt statute. The SJC went on to state that to convict for an attempt requires an intention to commit the underlying offense and an overt act towards its commission. It also requires that the substantive crime was not achieved. The court observed that there was ample evidence of an overt act, the substantive crime of indecent assault and battery was not accomplished, and there was no reason the commonwealth would not be able to prove the defendant intended to commit an indecent or offensive touching. The SJC also discussed that “although a defendant may not be prosecuted for indecent assault without a completed battery, the fortuity that the defendant failed in his attempt to complete a crime does not absolve him from responsibility for it.” The court finally noted support for their affirmative answer to question one by a review of the legislative history which showed the legislature recognized the viability of the charge of attempted indecent assault and battery. Because the SJC’s answer to the first question was, “Yes,” there was no need to address the second question and the case was remanded to the Superior court for further proceedings consistent with the opinion.
- Prepared by AEK
