Com. v. Baker

• Citation: 17 Mass.App.Ct. 40,455 N.E.2d 642
• Parties: COMMONWEALTH v. Robert BAKER.
• Decision Date: 31 October 1983
• Court: Appeals Court of Massachusetts

Page 642

455 N.E.2d 642

17 Mass.App.Ct. 40

COMMONWEALTH v. Robert BAKER.

Appeals Court of Massachusetts,

Hampden.

Argued Oct. 7, 1983.

Decided Oct. 31, 1983.

Richard Zorza, Brookline, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before GRANT, KASS and WARNER, JJ.

GRANT, Justice.

The defendant has appealed from his conviction under G.L. c. 272, § 4B, ¹ by a judge of the Superior Court sitting without jury. The only question which has been argued on appeal is whether the prosecution, in order to secure a conviction under that section, must offer evidence that the defendant knew or should have known that the prostitute in question was a minor. There was no such evidence below. The question was raised and preserved there by a motion under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), and by a request under Mass.R.Crim.P. 26, 378 Mass. 897 (1979), both of which were denied.

The defendant points to the severity of the maximum penalty which can be meted out under § 4B ² and directs our attention to cases in which our appellate courts, acting either to avoid constitutional implications or out of solicitude for persons who may have acted from mistake or by accident, have read an element of scienter into various criminal statutes. See, e.g., Commonwealth v. Murphy, 342 Mass. 393, 396-397, 173 N.E.2d 630 (1961); Commonwealth v. Buckley, 354 Mass. 508, 509-513, 238 N.E.2d 335 (1968); Commonwealth v. Jackson, 369 Mass. 904, 916, 344 N.E.2d 166 (1976); Commonwealth v. Wallace, 14 Mass.App. 358, 363-365, 439 N.E.2d 848 (1982). For two reasons, those cases avail the defendant nothing. First, the defendant must be taken to have known that the provisions of G.L. c. 272, § 7, as appearing in St.1980, c. 409, ³ made it a criminal offense for him to live off the earnings of any prostitute regardless of her age. See and compare Commonwealth v. Murphy, 165 Mass. 66, 70, 42 N.E. 504 (1895). Second, the Supreme Judicial Court has consistently treated sex offenses against minors as a distinct category of public welfare offence in which there is no implied requirement that the prosecution offer evidence that a defendant knew or should have known the victim's age. See Commonwealth v. Murphy, 165 Mass. at 70, 42 N.E. 504, Commonwealth v. Moore, 359 Mass. 509, 514-515, 269 N.E.2d 636 (1971), and Commonwealth v. Miller, 385 Mass. 521, 522-525, 432 N.E.2d 463 (1982), all of which were decided under statutory rape provisions such as those now found in G.L. c. 265, § 23, as appearing in St.1974, c. 474, § 3. ⁴

It was in light of the holding in Commonwealth v. Moore, 359 Mass. at 514-515, 269 N.E.2d 636, that the 1979 Legislature took up the task of supplementing the provisions of G.L. c. 272, § 7, as in effect prior to St.1980, c. 409, by providing additional safeguards against the victimization of minors. Specifically, the Legislature could safely assume that the courts would not read into the words "[w]hoever lives or derives support or maintenance ... from the earnings or proceeds of prostitution committed by a minor" in § 4B any requirement that a defendant know or have reason to know the age of the prostitute in question. See Commonwealth v. Miller, 385 Mass. at 524, 432 N.E.2d 463. The 1979 Legislature could also assume that the courts would understand that it knew how to express a requirement of scienter if that were its intention. See, e.g., the degendering (compare Commonwealth v. Gallant, 373 Mass. 577, 583-584, 369 N.E.2d 707 [1977] ) of G.L. c. 272, § 5, which was accomplished by the enactment of St.1979, c. 305, ⁵ approximately four months prior to the enactment of G.L. c. 272, § 4B, and in which the Legislature expressly preserved the requirement of § 5 that a defendant have "reasonable cause to believe" that the person with whom he has unlawful sexual intercourse be "feeble minded, an idiot or imbecile or insane." Finally, we think it is not without significance that the clause "knowing the same to be the earnings or proceeds of prostitution" now found in G.L. c. 272, § 4B, did not appear in the bill originally introduced in the Legislature (1979 House Doc. No. 6753) but was inserted without any concomitant change in the introductory "[w]hoever" clause in the course of the bill's travels through the legislative branch. See 1979 House Journal, at 3140.

We hold that the prosecution need not offer evidence that a defendant knew or should have known the age of the prostitute in question in order to secure a conviction under G.L. c. 272, § 4B, inserted by St.1979, c. 676. Accordingly, the judgment on indictment No. 82-3058 is affirmed.

So ordered.

1 General Laws c. 272, § 4B, inserted by St.1979, c. 676, reads as follows: "Whoever lives or derives support or maintenance, in whole or in part, from the earnings or proceeds of prostitution committed by a minor, knowing the same to be earnings or proceeds of prostitution, or shares in such earnings, proceeds or monies, shall be punished by imprisonment in the state prison for not less than five years and by a fine of five thousand dollars....