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Court makes distinction for sex offender who isn’t threat

By Milton J. Valencia
Globe Staff / September 17, 2011

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The state’s highest court has refused to commit a career exhibitionist, or flasher, under the state’s sexual predator laws, saying there is no evidence that the man poses any danger to anyone.

The ruling was restricted to the case of Donald Suave, but it could put more of a burden on prosecutors seeking to commit sexual offenders who have no history of posing physical threat of harm, known as contact crimes, according to legal analysts.

Suave is a 55-year-old who has been convicted of open and gross lewdness seven times, mostly for flashing young adult woman, sometimes while masturbating, and he has told medical examiners that he has done it as many as 30 times since he was 13 years old.

But in a ruling issued yesterday, the state Supreme Judicial Court drew a distinction between Suave’s conduct and the type of menacing threat of harm that would necessitate his commitment under sexual predator laws, such as stalking someone while flashing, or doing it in front of a child.

“The Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime,’’ the court said in a decision written by Justice Francis X. Spina.

“A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.’’

While maintaining that the ruling was restricted to Suave, Spina also wrote that the decision should not suggest that every sex offender who has committed only noncontact crimes such as flashing do not pose a threat to the health and safety of others.

“Each case is specific,’’ Spina wrote. “We can easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant.’’

But William A. Korman, a lawyer for Suave, said yesterday that the ruling is still significant in that it has set a benchmark for prosecutors looking to civilly commit a sex offender, even if that offender has not caused physical harm to anyone. The ruling, for instance, could protect people who possessed child pornography - rather than distributed it or harmed a child in the process - from commitment.

“I think they sharply curtailed the Commonwealth’s ability to bring cases like this,’’ said Korman, of Rudolph, Friedmann, LLP, of Boston.

He and legal analysts say that the ruling does not affect offenders who have caused harm to others, or created the threat of it. The ruling, for instance, affirms that a flasher who stalks someone, lurks around a particular area such as a bathroom, or who targets a particular person could be considered a menace to someone if that person feels threatened.

“There needs to be an element of menace which shows a person could perceive they were going to be sexually assaulted,’’ Korman said.

But, he added, “I think this case can be useful in forcing the Commonwealth to make a decision on whether a person is a sexually dangerous person or an individual who has been convicted of a sexually based offense, and that’s what Suave was. It’s criminal conduct and he was sanctioned for it, but there has to be a difference.’’

John Swomley, a lawyer not involved with the case who has handled many sex-offense crimes, said the ruling appropriately restricts cases in which prosecutors can seek a civil commitment, a practice he says has expanded since new sex-offense laws went into effect two decades ago.

“People can get caught up in this for open and gross lewdness,’’ said Swomley.

The high court affirmed an Essex Superior Court ruling. The Superior Court judge found that while Suave could have been committed under the language of state laws, it would be unconstitutional to do so because prosecutors never demonstrated that his convictions were predictors that he would harm someone or create that menacing threat necessary to commit him.

The high court did not address whether the state law is unconstitutional, but it determined that Suave could not be committed under the state laws because he did not cross the threshold of being a menace.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.