ARTHUR PAGE vs. COMMONWEALTH.

GRANT, J. In 1959 Arthur Page, the petitioner herein, was discharged from Massachusetts Correctional Institution, Concord, as required by the decision in Commonwealth v. Page, 339 Mass. 313 (1959). In 1960 he was convicted in the Superior Court of violations of G. L. c. 272, Sections 16 and 35A, and given consecutive sentences, the second of which would expire no later than August 17, 1968. On December 19, 1962, in proceedings conducted under G. L. c. 123A, Section 6 (as appearing in St. 1958, c. 646, Section 1), he was determined to be a sexually dangerous person (SDP) and committed to the center for the treatment of the sexually dangerous which is maintained by the Department of Mental Health (Department) at M.C.I., Bridgewater (center).

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On May 15, 1981, a hearing was held in the Superior Court on Page's petition under G. L. c. 123A, Section 9 (as amended through St. 1966, c. 608), by which he sought to be discharged from the center. The Commonwealth called two psychiatrists. The first, Dr. Robert F. Moore, confirmed the advice he had given in a report submitted by him earlier in 1981 (see G. L. c. 123A, Sections 4, 5, 6 and 9) that he "[could not] offer substantial evidence that [the petitioner] is still [an SDP]." The second, Dr. William M. Nagler, confirmed the advice and opinion in his report (also submitted earlier in 1981) that the petitioner "has displayed no recent sexually violent, assaultive or acting out behavior" and "is no longer [an SDP]." [Note 1] The Commonwealth's only other witness, one Dennis McNamara, submitted the formal recommendation of the Department under Section 9 (see Anderson, petitioner, 362 Mass. 872, 872 [1972]; Leavis, petitioner, 12 Mass. App. Ct. 958 [1981]; contrast Davis, petitioner, 8 Mass. App. Ct. 732, 734 [1979]) which he had prepared and the essence of which is set out in the margin. [Note 2] Other

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evidence which might be thought material will be discussed later. [Note 3]

At the conclusion of the Commonwealth's case the petitioner filed a motion for a required finding in his behalf. Compare Davis, petitioner, 383 Mass. 645, 649 (1981); Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The motion was denied, and the petitioner has appealed from the subsequent denial of his petition. We reverse and order the discharge of the petitioner.

A brief review of basic principles will be helpful. The statutory definition of an SDP which is set out in G. L. c. 123A, Section 1 (as appearing in St. 1958, c. 646, Section 1), [Note 4] does not vary depending on whether a court is considering an original commitment under Section 5 or Section 6 of that chapter or the

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possibility of a release under Section 9. See McHoul v. Commonwealth, 10 Mass. App. Ct. 878 (1980). In either type of proceeding the Commonwealth has the burden of proving beyond a reasonable doubt that the person in question is (present tense) one who suffers from a "general lack of power to control his sexual impulses . . . and who as a result is likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires" (Section 1, emphasis supplied). See Commonwealth v. McHoul, 372 Mass. 11, 13-16 (1977). The attack which is postulated is one which is sexual in character. Commonwealth v. Rodriguez, 376 Mass. 632, 643 n.15, 645 (1978). Evidence of past sexual misconduct, standing by itself, will not support a finding of sexual dangerousness which will justify an original commitment under Section 5 or Section 6 (Commonwealth v. Walsh, 376 Mass. 53, 58 [1978]), and any ruling that such misconduct, standing by itself, will justify a retention at the center would not only render illusory the right to recurrent review which is afforded by Section 9 (and which can be invoked as early as the expiration of the first year of a commitment) but also destroy the constitutional underpinnings of Sections 5 and 6. See Andrews, petitioner, 368 Mass. 468, 483-491 (1975).

We think the foregoing principles were overlooked by the judge when he ruled on the petitioner's motion. The general question raised by the motion was whether the Commonwealth had sustained its burden of producing evidence from which a rational trier of fact could conclude beyond a reasonable doubt that the petitioner continued to be an SDP at the time of the hearing. Andrews, petitioner, 368 Mass. at 485, 486-489. Davis, petitioner, 383 Mass. at 649, 650. Davis, petitioner, 8 Mass. App. Ct. at 735-736. Travers v. Commonwealth, post 924, 924-925 (1982). The precise question raised by the motion was the petitioner's "ability to control [his] sexual impulses at [that] time . . ., not at the time (or times) of [his] earlier sexual misconduct" (McHoul v. Commonwealth, 10 Mass. App. Ct. at 878) more than

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twenty years ago. The Department's approach to that question, which is exemplified by the italicized portion of the report which is quoted in n.2 hereof, turns the whole problem on its head. A judge who follows that approach invites an inquiry as to whether he has reversed the burden of proof. [Note 5] See and compare Commonwealth v. Walsh, 376 Mass. at 60-61. Contrast Travers v. Commonwealth, supra at 924.

We turn to the specific evidence of present sexual dangerousness offered by the Commonwealth and relied on by the judge. The Commonwealth points to two letters the petitioner wrote to a female therapist at the center, one of them approximately fifteen months prior to the hearing and the other some six weeks after the first. In the first letter the petitioner advised the addressee of his continued virility, of his belief that she is very pretty, and of the fact that he had asked the administrator of the center to assign her as his "private therapist -- if that's alright with you?" In the second letter the petitioner reminded the addressee of his virility, advised her that he was well "endowed" and that he was sure she would enjoy "it" with him (emphasis original), and offered $100 for the privilege of proving all three propositions. Both psychiatrists agreed that the letters demonstrated "inappropriate" behavior, but, as Dr. Moore effectively pointed out, they did not demonstrate sexual misbehavior. There was no evidence that the petitioner had taken any action to further the desires suggested by his letters, or that those desires were uncontrolled or uncontrollable.

Dr. Moore thought it likely that "if [the petitioner] were involved in any sexual offense," it would be with a young child (emphasis supplied). He was not asked for, nor did he

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express, any opinion he might have entertained as to the likelihood that the petitioner would be involved in any kind of sex offence in the future. Contrast Commonwealth v. Denham, 8 Mass. App. Ct. 724, 730 (1979) (psychiatric opinion that "[h]e has needed children in the past; and I would not be surprised if, in the future, he didn't need children also"). Dr. Moore's negative answer to the question, "Do you see any change in [the petitioner's] attraction toward female children throughout his therapy?" loses all significance once it is understood (as later confirmed by McNamara in his testimony) that the petitioner had not participated in any form of therapy during the three-year period prior to the Section 9 hearing. [Note 6]

Neither the Commonwealth nor the judge has pointed to any other evidence (and we have found none) material to the question whether, at the time of the hearing, the petitioner continued to suffer from a "general lack of power to control his sexual impulses . . . and . . . as a result [would be] likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires" (G. L. c. 123A, Section 1). See and contrast Anderson, petitioner, 362 Mass. at 872, 873; Commonwealth v. Denham, 8 Mass. App. Ct. at 730; Davis, petitioner, 10 Mass. App. Ct. 834, 835 (1980), S.C., 383 Mass. at 648; Travers v. Commonwealth, supra at 924. We conclude that the evidence was insufficient to warrant a rational trier of fact in concluding beyond a reasonable doubt that the petitioner continued to be an SDP at the time of the hearing.

The decision of the Superior Court is reversed. As the petitioner has long since served the maximum sentences imposed on him, he must be discharged from the center and from all custody, unless he is subject to other charges which are not disclosed by this record. Andrews, petitioner,

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368 Mass. at 485-486. Commonwealth v. Travis, 372 Mass. 238, 251 (1977). [Note 7]

So ordered.