SJC Throws Out Attempted Child Rape Conviction
"Only In That Stronghold of Queerdom Massachusetts are Baby Rapers Safe."
In a split decision, the Supreme Judicial Court today threw out the conviction of a man found guilty of attempted child rape in 2004.
Although the man, Kerry Van Bell, had agreed to pay for sex with a four-year-old girl and made arrangements with an undercover Worcester police officer posing as the girl’s foster mother, his actions were not close enough to attempted rape to warrant conviction, argued Justice Francis Spina, writing for the 4-3 majority.
The court upheld Van Bell’s conviction for soliciting sex with a child. According to the court’s description of facts, Van Bell had been the subject of a Worcester Police sting. The undercover officer, Patricia Cummings, arranged to meet Van Bell in the parking lot of a Honey Farms convenience store in Worcester and arrange to receive $200 in exchange for sex with the child.
Once there, Van Bell expressed displeasure that the child was not in the car but agreed to follow Cummings to another location where she promised the child would be. Once Van Bell began to pull his car away, Cummings signaled to fellow police officers who cornered and arrested Van Bell.
“Even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child,” Spina wrote, explaining the overturned conviction.
“He had yet to follow Cummings to any type of house or park, and he had not yet paid for the child.
Gants said he supports the court’s decision to overturn the attempted rape charge but only because he believes the jury was given improper instruction that “poses a substantial risk of a miscarriage of justice because the evidence of an attempt here, while it may be legally sufficient, is not overwhelming.”
Gants concluded that the case should be remanded to Superior Court to give the commonwealth the chance to retry Van Bell on the indictment.