Massachusetts Appeals Court Affirms Lowell Man’s Sex Offense Convictions

The Massachusetts Appeals Court today upheld a variety of sex convictions against a 23-year-old Lowell man who was involved in an illicit sexual relationship with a 13-year-old girl.  The name of the case is Commonwealth v. Mienkowski. 

In 2010, the unemployed defendant lived next door to the victim and the two began to spend time together.  Their relationship became sexual and the defendant allegedly began inserting his tongue, finger, and penis into the victim’s vagina.  The following year, the victim moved in with her aunt and uncle in New Hampshire but she maintained contact with the defendant.  The aunt was suspicious of the defendant and began looking at the victim’s cellphone for evidence of inappropriate contact.  The cellphone provided all kinds of incriminating evidence, including admissions of sexual conduct by the defendant and a video the defendant sent to the victim of him masturbating.  The defendant also convinced the victim to send him a picture of her vagina.  The defendant did not testify at trial, but advanced a defense that the victim had fabricated all the charges.  He was convicted by a Lowell Superior Court jury of two counts of aggravated rape of a child, one count of posing a child in a state of nudity, and one count of dissemination of matter harmful to a minor.  The trial judge sentenced the defendant to serve 10 years in state prison followed by five years of probation.

The most interesting argument on appeal was whether the evidence was sufficient for the defendant to have been convicted of the dissemination charge.  The defendant admitted the evidence was sufficient that he sent the video of himself masturbating to the victim.  The question, then, was whether the video’s content was matter that was “harmful to a minor.”  Harmful matter has been defined by the Legislature as that which: (1) represents or describes nudity; (2) is patently contrary to the prevailing standards of adults as to suitable material for minors; and (3) lacks serious artistic, literary, scientific, or political value for minors.  The video clearly represented nudity and it lacked artistic, literary, scientific, or political value.  The defendant argued, however, that the video was not patently contrary to the prevailing standard of adults as to suitable material for minors.  The defendant asserted that if he had masturbated in front of the victim in person, he could not have been convicted of a crime.  Therefore, by sending the video depiction, he also was not breaking the law.  The Appeals Court wasn’t buying it.  The Court said it was appropriate to consider the video in the context of a message sent from a rapist (the defendant) to his child victim.  The Court noted that the defendant used the video to attempt to manipulate the victim to respond by sending a picture of her vagina to him.  When considered in context, said the Appeals Court, the video represented emotional abuse and constituted matter that was harmful to a minor (the victim).  The defendant conceded as much when he told the police he “wouldn’t send anything piggish like that.”

The collateral consequences of the defendant’s convictions will last a lifetime, as he will be required to register as a sex offender when he is released from prison.  If you are charged with a sex crime, it’s crucial you consult with an experienced criminal defense attorney immediately.