Bernardo was the eldest (having "just entered his teens") and only male amongst a group of four playmates (the other three were females "on the cusp of their teenage years") who engaged in various kinds of sexual touching at Bernardo's request. Bernardo's father found a text on Bernardo's cell phone from one of the girls talking about a sex act she would have performed on him if one of the other girls had not been present. Mr. B. called the girl's mother with his concern. The girl's parents called the police. After investigation and sexual abuse interviews in which the girls described Bernardo "pressuring" them to touch him in various ways Bernardo was charged with delinquency for three counts of statutory rape, amongst other charges.
Bernardo's defense attorney tried to get the District Attorney to prosecute the girls for their sex acts on, the also under aged, Bernardo but the DA declined. Bernardo filed applications for criminal complaints against the girls but the Clerk-Magistrate declined to issue complaints.
Chief Justice Marshall, in a 3-2 decision, ruled that "[T]he single justice [who refused to vacate the juvenile court judge's order granting the defendant's discovery requests] did not abuse her discretion in declining to vacate the ruling of the motion judge that the boy has made a threshold showing based on credible evidence that he is entitled to discovery for the purpose of investigating and, if warranted, raising a claim of selective prosecution."
Press reports of the case imply that the SJC ruled that there was selective prosecution. The case really only says that the defendant has raised enough of a question about selective prosecution that he is entitled to force the DA to produce statistics that may help him show that he was discriminatorily prosecuted on the basis of being male. Once the information is provided, the defendant will still have a heavy burden to meet in attempting to overcome the presumption of validity granted to prosecutorial discretion.
Also of interest in the case was a brief history of statutory rape. Chief Justice Marshall wrote:
Statutory rape is an offense of ancient origins. "First codified into English law in 1275, statutory rape criminalized sexual relations with females under the age of twelve." Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L.Rev. 703, 754 (2000). The aim of this gender-specific statute was not the protection of young females but the protection of fathers' property interests in their young daughters, whose loss of virginity would severely depress the value of the dowry the father would receive on his daughter's marriage. Id. at 754-755. By the late Sixteenth Century, the aim of the law evolved to a statute designed to protect men from charges of illegal sex with young girls. The age of consent was lowered to ten years and so it stood when the American colonies, including Massachusetts, absorbed English common law and adopted the English law of statutory rape. General Laws of Massachusetts Colony at 15 (1672), reprinted in Colonial Laws of Massachusetts 1672-1686 (1887) ("whosoever he be shall commit or have Carnal Copulation with any such [woman] Childe under ten years old ... he shall be put to death"); Province Laws 1692-1693, c. 19, § 11 (capital offense for any man to "unlawfully and carnally know and abuse any woman child under the age of ten years"). See generally Note, No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, 16 J.L. & Pol'y 717, 725-726 (2008). In the late Nineteenth Century, in response to the widespread sexual exploitation of young girls in factories and urban centers, temperance organizations and other reform groups launched a nationwide effort to raise the age of consent. In Massachusetts, between 1886 and 1898, the age of consent rose from ten to thirteen, then fourteen, then sixteen years of age. See Commonwealth v. Hackett, 170 Mass. 194, 195-196 (1898) (summarizing statutory amendments to age of consent). As in Elizabethan times, however, only females could be the victims of statutory rape.
There have been more recent efforts to reform our American statutory rape law. Statute 1974, c. 474, § 3, struck the word "female" from G.L. c. 265, § 23. Compare St.1974, c. 474, § 3, with St.1966, c. 291. See also note 3, supra. As we noted in Commonwealth v. Hackett, 383 Mass. 888, 888 (1981): "In general, the 1974 amendment eliminated prior language which defined the victims of rape as female or female children. Instead, the victims are now defined as persons or children and the generic masculine pronoun is substituted throughout. Both males and females are protected from sexual assault by this same statute, which is neutral as to the gender of the victim. Nor does the statute define the various crimes with reference to the gender of the offender. The result is that the penalties for sexual intercourse and unnatural sexual intercourse are the same without regard to the gender of the victim."
Modern amendments leave no doubt about the Legislature's intent to protect all children under sixteen years old from sexual abuse. The statutory rape law, as well, makes clear that perpetrators of statutory rape may be either male or female. Statutory rape in Massachusetts is a strict liability felony. Only two elements are needed to support a conviction under G.L. c. 265, § 23: "(1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Miller, 385 Mass. 521, 522 (1982). See id. at 525 (noting that mistake as to age is not defense to statutory rape in Massachusetts). Force is not a necessary element of the crime. Moreover, conviction of statutory rape has weighty consequence beyond incarceration. Those convicted enter the Commonwealth's sex offender registry and are required to abide by all of the obligations and restrictions contained therein. See G.L. c. 6, §§ 178C-178Q.
It remains to be seen whether Bernardo will be able to make out his selective prosecution case and thereby get the complaint against him dismissed. His motion "to dismiss the statutory rape claim on the ground that the law was unconstitutional as applied to him ... remains undecided, [and was] not before [the SJC]. The decision noted also that "As a result of the arrest and charges, the boy has been suspended from school and removed from its football team. He is being tutored at home."