The state's highest court ruled today that Middlesex prosecutors can pursue attempted indecent assault and battery charges against former state senator J. James Marzilli.
In a unanimous ruling, the Supreme Judicial Court noted that while Marzilli allegedly did not actually touch his victims, there is enough evidence for prosecutors to show he tried to do so.
"The fortuity that the defendant failed in his attempt to complete a crime does not absolve him from responsibility for it,'' Chief Justice Margaret H. Marshall wrote for the court.
In court papers, Middlesex District Attorney Gerard T. Leone Jr.'s office has said Marzilli should be imprisoned if convicted.
Marzilli's attorney argued that the criminal case should be tossed out because of a 1974 Appeals Court case that found no support in state law for the prosecution of someone for attempted indecent assault and battery.
But Marshall said the 1974 ruling was wrong and will no longer be followed by Massachusetts courts. She said the state Legislature has repeatedly made such an act a crime.
"If the Legislature had intended to exclude indecent assault and battery from operation of the attempt statute, it would have done so directly,'' she wrote.
Marzilli was a Democratic senator from Arlington who was arrested by Lowell police in 2008 after he allegedly made indecent sexual advances to four different women on June 3.
He later resigned from office and his attorney, Terrence Kennedy, has said Marzilli is suffering from a major mental illness.
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