COMMONWEALTH vs. LEROY E. JARVIS.

GOODMAN, J. In proceedings conducted under G. L. c. 123A, Section 6 (as most recently amended by St. 1969, c. 838, Section 58), the defendant, Leroy E. Jarvis, was found to be a sexually dangerous person and was committed to the treatment center at Bridgewater for from one day to life. The case is before us on the defendant's substitute bill of exceptions.

On October 27, 1970, the defendant was sentenced to M.C.I., Concord, after pleading guilty to indictments charging "assault to rape," an unnatural act, assault and battery with a dangerous weapon, and furnishing liquor to a minor. The sentences were concurrent. Thereafter, proceedings were begun under G. L. c. 123A and on May 13, 1971, the district attorney filed a petition for the defendant's commitment to the treatment center at

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Bridgewater. At the hearing on the petition Dr. Aviles, a licensed physician specializing in psychiatry and acting as a senior psychiatrist at Bridgewater, and Dr. Friedman, a consulting psychiatrist, each testified on behalf of the Commonwealth that, in his opinion, the defendant was a sexually dangerous person. [Note 1] Dr. Lebeaux, a diplomate of the American Board of Psychiatry, appointed by the court and paid by the county, testified that, in his opinion, the defendant was not a sexually dangerous person. The defendant and Sandra Jarvis, his former wife, with whom he had four children, testified on his behalf. The defendant's criminal record was also introduced in evidence. See Commonwealth v. Bladsa, 362 Mass. 539 (1972). The only issue raised by the defendant's substitute bill of exceptions with which we need concern ourselves is whether there was sufficient evidence to warrant a finding that the defendant was a sexually dangerous person. Since we hold the evidence insufficient and that the petition must be dismissed, it is not necessary to deal with the defendant's other contentions.

The elements of proof required for a finding that a defendant is a "sexually dangerous person" are set out in the definition, found in G. L. c. 123A, Section 1. [Note 2] In Peterson, petitioner, 354 Mass. 110, 117 (1968), the Supreme Judicial Court said (answering a contention that the definition and particularly the word "misconduct" were

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unconstitutionally vague): "Whereas this word, if standing alone, might suggest that a person was sexually dangerous for almost any act which offended someone's notion of propriety (see Musser v. Utah, 333 U.S. 95), the statute sets forth clearly its meaning in the subsequent clauses. The statutory definition requires [1] repetitive or compulsive behavior, [2] violence or aggression by an adult against a person under the age of sixteen and [3] a likelihood that injury will be [in]flicted" (emphasis supplied). Paraphrasing this in terms relevant to this case, commitment as a sexually dangerous person must be based on evidence of repetitive acts of sexual misconduct which are also violent or on evidence of behavior which is compulsive and violent. [Note 3] See 1959 Ann. Surv. of Mass. Law, Section 10.3, p. 96. The Supreme Judicial Court went on to say in the Peterson case, "The statute reaches those persons whose behavior has reasonably demonstrated that they are such a danger to society as to require confinement. The language resembles that approved by the Supreme Court in Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 272-274. See Sas v. Maryland, 334 F. 2d 506, 514 (4th Cir.)" (emphasis supplied). [Note 4]

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The court was thus careful to interpret the statute so as to specify a concrete basis in past sexual misconduct for "a projection of future conduct" (Sarzen v. Gaughan, 489 F. 2d 1076, 1084 [1st Cir. 1973]), requiring "evidence of past conduct pointing to probable consequences . . . ." Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 274 (1940). This recognized the basically recidivist character of statutes of this kind. See Specht v. Patterson, 386 U.S. 605, 610 (1967); Millard v. Harris, 406 F. 2d 964, 972 (D. C. Cir. 1968). The requirement for repetitive or compulsive sexual misconduct has been termed "a comparatively plausible approach" (Note, The Plight of the Sexual Psychopath: A Legislative Blunder and Judicial Acquiescence, 41 Notre Dame Lawyer 527, 530); it mitigates the "inherently speculative nature of psychiatric predictions" (Sarzen v. Gaughan, 489 F. 2d 1076, 1086 [1st Cir. 1973], and material cited), and the "very real constitutional problems surrounding incarceration predicated only upon a supposed propensity to commit criminal acts." Cross v. Harris, 418 F. 2d 1095, 1101 (D. C. Cir. 1969). See also Tippett v. Maryland, 436 F. 2d 1153, 1160 (4th Cir. 1971) (Sobeloff, J., concurring and dissenting). It thus goes at least some way in "substitut[ing] functional legal criteria for the medical model . . . ." Dershowitz, Psychiatry in the Legal Process: "A Knife that Cuts Both Ways," in The Path of the Law from 1967, pp. 71, 83 (Sutherland ed. 1968).

Analyzing the record in terms of the explanation in the Peterson case, we find no evidence of repetitive or compulsive sexual misbehavior sufficient to provide a point of

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departure for a finding that the defendant is a sexually dangerous person. The defendant's criminal record does not indicate, and there was no other evidence of, any sexual misconduct except for the one incident of September 4, 1970. The defendant's criminal record contained mainly convictions for drunkenness and other minor offenses, [Note 5] none of which appear to have been sex related.

Nor was there sufficient evidence of "compulsive behavior." The convictions for "assault to rape" and "unnatural act" are not, without more, sufficient evidence of compulsive behavior. "[A] sexual offense, such as rape . . . may not denote a sexual deviation. A charge such as indecent assault may comprise . . . sexually non-deviant acts such as accosting a woman in a park with `normal' sexual aims." Sadoff, Sexually Deviated Offenders, 40 Temple L. Q. 305, 309, n. 15, quoting Gray and Mohr, Follow-up of Male Sexual Offenders, in Sexual Behavior and the Law, pp. 742, 743 (Slovenko ed. 1965). See also Cohen, Garofalo, Boucher and Seghorn, The Psychology of Rapists, 3 Seminars in Psychiatry, No. 3, 307, 311-312. It might well be, as the Legislature apparently felt, that a single act of sexual misconduct may be so bizarre and irrational as to permit the inference by a trier of fact that it was uncontrollable, and thus provide the basis for a determination that it was compulsive behavior. When such an act is also violent, there is a statutory basis for a prediction that the defendant is a sexually dangerous person. However, there was nothing in the testimony of the psychiatrists for the Commonwealth (the only evidence it produced apart from records) which indicated that the incident of

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September 4, 1970, manifested compulsive conduct. [Note 6] Some details of the incident came from Dr. Lebeaux, who testified "that Jarvis had been led into the crime . . . [by] another person who appeared to be a rather aggressive, authoritative figure . . . ." [Note 7] We conclude that the evidence did not permit a finding that the incident of September 4, 1970, was the result of compulsive behavior; nor was there any evidence of other sexual misconduct.

Exceptions sustained.

Petition dismissed.