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Monday, December 19, 2005
Some of you may recollect that one of our former members had a daughter under the age of 12 had a daughter in the Key Shelter in Pittsfield, Massachusetts where the daughter, having the mentality of a 9 year old, was accosted by an unwanted lesbian style kiss on the lips by a 16 or 17 year old that was living with her.  (She was also physically accosted at school by one of the boys who lived with her and whacked her in the face with a game boy.)  

The father brought a motion for emergency relief because the father wanted the child out of the shelter, and with the father since the stepfather had apparently beaten the child.  (Her injuries were taped and she is on tape saying that her stepfather caused it.)  

The father was told he was making a mountain out of a mole-hill, and the Probation Office, Pat Garvey, was trying to hold her smirk at his “over the top” complaint.  Ultimately, the father’s attorney was fined $500 for a “frivolous” complaint and was given a humiliating rebuke about the alleged abuse of restraining orders.

Now we come to a case called COMMONWEALTH vs. LUIS VAZQUEZ, that can be read by clicking on the case name that is a link to this recent case.

NOTABLE QUOTES: “Defendant was found guilty of indecent assault and battery on a person fourteen years of age or over, in violation of G. L. c. 265, § 13H, and indecent assault and battery on a child under fourteen years of age, in violation of G. L. c. 265, § 13B. The charges stemmed from separate incidents alleged by two of his wife's nieces, Susan and Kathy,(1) ages fifteen and twelve, respectively, at the time of the incidents.

On appeal, the defendant raises two issues that require discussion. He contends that his motion for a required finding of not guilty on the charge involving Kathy should have been allowed,(2) because the conduct relied upon by the Commonwealth -- a brief kiss on Kathy's mouth involving the defendant's partially open mouth, but not his tongue -- did not meet the legal standard for indecency. . .”

“We conclude that the evidence viewed in the light most favorable to the Commonwealth was sufficient to prove the charge of indecent assault and battery upon Kathy, because, in the circumstances, the defendant's placement of his open mouth upon his niece's lips could be found to be an indecent act.


“1. Sufficiency of proof of indecency. To establish a violation of G. L. c. 265, § 13B, the Commonwealth was required to prove beyond a reasonable doubt that the defendant committed an intentional, unprivileged, and indecent touching of a child. Commonwealth v. Taylor, 50 Mass. App. Ct. 901, 901 (2000). "A touching is indecent when, judged by the 'normative standard' of societal mores, it is 'violative of social and behavioral expectations,' Commonwealth v. Gallant, 373 Mass. 577, 580-581, 589 (1977), in a manner 'which [is] fundamentally offensive to contemporary moral values . . . [and] which the common sense of society would regard as immodest, immoral and improper.'" Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314-315 (1997), quoting from Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991). When evaluating evidence of alleged indecent behavior, we consider all of the attendant circumstances. See Commonwealth v. Lavigne, supra at 316. See also Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 626 (2004).”


“The touching in question need not be restricted to the list of anatomical parts and areas referred to in Commonwealth v. Mosby, supra at 184. Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 (2002). In certain circumstances, the touching of other intimate parts -- including the mouth and its interior -- may violate contemporary views of personal integrity and privacy. Commonwealth v. Rosa, supra at 625. Thus, an unwanted kiss on the mouth has been held to constitute indecent conduct, at least in circumstances involving the forced insertion of the tongue, when coupled with surreptitiousness and a considerable disparity in age and authority between the perpetrator and the victim. Commonwealth v. Castillo, supra at 566-567 & n.2. We do not read our cases, however, as requiring that there always be tongue involvement for an act that might be characterized as a kiss to be found indecent, as other facts and circumstances may allow the trier of fact rationally to determine that the kiss was an indecent act. In the overall context and circumstances presented by this case, we think that the jury reasonably could conclude that the kiss on Kathy's mouth was indecent.”

“Focusing solely upon the evidence of the episode with Kathy, the defendant contends that a finding of indecency was not warranted. We agree that in most situations it would not be appropriate to criminalize a brief kiss on the mouth that did not involve the insertion or attempted insertion of the tongue. In this case, however, we think that the kiss could be viewed as having improper, sexual overtones, "violative of social and behavioral expectations." Commonwealth v. Lavigne, 42 Mass. App. Ct. at 314, quoting from Commonwealth v. Gallant, 373 Mass. at 589. This conclusion is supported by the age difference between the defendant (who was in his thirties) and Kathy (who was only twelve), and his position of familial authority over her when he asked her for the kiss, as well as from the evidence that he turned his head to meet Kathy's lips with his mouth open to an extent that Kathy could feel its interior, that the kiss lasted longer than the usual peck on the cheek, and that the defendant behaved surreptitiously, as shown by his practice of kissing Kathy on the lips when they were alone, but on the cheek when there were other family members present. See Commonwealth v. Castillo, 55 Mass. App. Ct. at 567.”


In the case of one of our father’s: (1) the child was not related to the other, but was in a safe house, (2) the child had diminished capacity, (3) according to the child, the perpetrator stuck her tongue in, and (4) it was a homosexual kiss, adding to the humiliation.

There was also no “he-said, she-said” aspect to this.  All parties agree that the event occurred.  It was just the father that was making a mountain out of a molehill.  Subpoenas of DSS and the Key Shelter were wantonly ignored, and the judge did nothing to enforce them. Custody of the child remained with DSS in the Key Shelter, and the court did nothing.  In fact, the father was fined for a frivolous emergency motion.

There was no restraining order on DSS, the Key Shelter, the Supervisors, or the perpetrator herself.  There were no other rulings in equity to protect the child.  DSS was not contacted for further review.  The child was not given to the father, where the only allegation against him was years old and never substantiated in a court of law.   What was the terrible alleged crime of the father?  It was said he asked the child to hurt his mother years ago, a fact which the child has denied. There is no allegation of physical abuse against the child or of sexual abuse against the child. 

What was this judge of the Probate and Family Court you may ask? 

Judge Geoffrion.


The Berkshire Fatherhood Coalition is an organization dedicated to promoting the Father/Child relationship and promoting gender equality in family law.