SALEM — Just how far can the government go to prevent a man prosecutors call an "incorrigible" exhibitionist from re-offending?
That's the question the state's highest court took up yesterday during a hearing in the case of a North Shore man named Donald Suave.
The Supreme Judicial Court was asked to consider whether the state's sexually dangerous persons law, allowing for some offenders to be kept in custody after they complete their sentences, is constitutional because it includes nonviolent offenses.
Essex County prosecutors want to keep Suave locked up even though he has completed his most recent sentence, so last summer they asked Salem Superior Court Judge Timothy Feeley to declare Suave, 53, a "sexually dangerous person."
Feeley agreed with prosecutors that under the law in Massachusetts, Suave fit all the requirements of a sexually dangerous person who is likely to re-offend.
But the judge rejected the state's request, finding that the law, amended in 2004 to include open and gross lewdness, the offense for which Suave had been repeatedly convicted, is unconstitutional, citing a United States Supreme Court ruling in a Kansas case that, he wrote, appears to limit the government to holding only violent sexual offenders past their sentences.
Essex County Assistant District Attorney Kenneth Steinfield argued that the Kansas case dealt not with the issue of violence but with the mental status of a defendant and that the Massachusetts statute passes constitutional muster.
He also argued that Suave poses a risk of causing serious emotional harm to others if he is released.
"It would distort the meaning of the words to say that someone who does what this defendant does is not a menace to the health and safety of others," Steinfield argued.
Steinfield found a tough audience among the justices.
When he suggested that the standard is dangerousness, not violence, Justice Margot Botsford responded, "Oh, please."
Justice Ralph Gants questioned whether a decision allowing the law to stand opens the door to other laws to commit people after their sentences for other types of offenses.
William Korman, Suave's lawyer, said the law already protects the public by making Suave's behavior a crime, so that if he does re-offend when he gets out — as predicted by doctors who evaluated him — he will go back to jail.
When Chief Justice Roderick Ireland asked Korman if he agrees that Suave is dangerous, Korman said he does not believe he is.
Suave, in his decades of exposing himself and masturbating in public, has never targeted a specific individual or followed anyone, Korman argued. His behavior may be "disgusting," but it's not violent.
That may be, suggested Justice Robert Cordy, but what about others charged with open and gross lewdness who do target specific people?
That led Korman to suggest that the solution would be for legislators to create a new crime of "aggravated" lewdness.
"I think what's missing here is we're not talking about a sexually unpleasant person or a sexually disgusting person," Korman said. "We're talking (in the statute) about a sexually dangerous person."
Cordy suggested that Suave's behavior is harmful.
"This involves encounters between your client and others in a sexually offensive way," Cordy said. "I think it's clear it probably causes emotional harm."
Suave (who sometimes spells his name "Sauve") grew up in Salem and has also lived in Peabody and Beverly. He is currently still in custody at the Massachusetts Treatment Center in Bridgewater, awaiting the SJC's decision.
The case was "fast-tracked" because Suave is in custody, so a decision could come from the court sooner than the typical three to four months it takes in most cases.
Courts reporter Julie Manganis may be reached at 978-338-2521 or jmanganis@salemnews.com.
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