Public Access

Sealing Records of a Teacher's Prosecution for Sexual Conduct with Underage Students?

An interesting Massachusetts decision from a couple of months ago, upholding a trial court's refusal to seal under such circumstances.


The Massachusetts high court has held that routine expungement of criminal records, and sealing of the relevant court files, doesn't violate the First Amendment right of access to court records (though decades before the First Circuit had held the opposite). But expungement is still in the trial court's discretion; Commonwealth v. Kenny, decided May 10, 2019 by the Appeals Court of Massachusetts (Judges Peter J. Rubin, Peter Sacks & Sookyoung Shin), helps illustrate that:

The defendant, formerly a teacher, was charged on June 24, 2011, with nine counts of statutory rape, and three counts of procuring alcohol for a minor. On March 26, 2014, approximately ten days before trial, the parties agreed that the Commonwealth would nol pros [i.e., drop -EV] all twelve charges in exchange for the defendant's entering an Alford plea to two counts of unnatural and lascivious acts with a child under sixteen, one of his students. [Under an Alford plea, a defendant pleads guilty for legal purposes, but doesn't admit factual guilt. -EV]

The matter was continued without a finding for three years. He was sentenced to a three-year term of probation with conditions that included that he complete any evaluations, programs, and therapies recommended by the probation department other than sex offender counselling; that he have no unsupervised contact with any child under the age of sixteen other than his biological children; that he not be employed or participate in any volunteer activity where he would have direct, substantial, unsupervised contact with any child under the age of sixteen; and that he not be employed as any kind of teacher.

Seven months after his Alford plea, the defendant filed a petition under G. L. c. 276, § 100C (first petition), to seal the charges that had been nol prossed, which was opposed by the Commonwealth and denied by a judge. After he successfully completed probation, he filed the instant petition to seal his entire record, which the Commonwealth again opposed. A different judge held a nonevidentiary hearing and denied that petition, holding in full, "After hearing, the petition is denied." The defendant now appeals from the denial of his second petition.

Because all charges against him have been nol prossed or dismissed, the defendant is eligible for the discretionary sealing of his entire record under G. L. c. 276, § 100C. [Footnote: Although the docket shows that the defendant was discharged when probation terminated, it does not say explicitly that the unnatural and lascivious acts charges were dismissed. Because dismissal results when the defendant has successfully completed probation, and no party has suggested otherwise, we conclude that those charges were dismissed.] The standard that judges must employ in deciding whether to seal a defendant's criminal record under that statute was articulated in Commonwealth v. Pon, 469 Mass. 296, 14 N.E.3d 182 (2014). The ultimate question is "whether the defendant has established good cause for sealing his or her record."  In making this determination, judges should evaluate, at a minimum, the following factors:

"the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition."

We review the motion judge's decision for abuse of discretion or error of law.

The defendant avers that "[s]ince [his] plea, [he has] applied to obtain many jobs, but [has] been shut out from all of them, from the menial to the professional," has only been able to obtain sporadic work that was "not sufficient to provide a living," and has had to "rely upon income from [his] wife as well as assistance from family members." Now that the charges against him have been dismissed, however, most employers examining his criminal record will not be able to access the charges that were made against him. To most employers, his record will appear clear. See 803 Code Mass. Regs. § 2.05(4)(a)(1) (2017) ("Standard Access" to criminal offender record information is available to employers, and includes continuances without a finding "until they are dismissed"). The availability of his criminal record to these employers will not disadvantage the defendant, nor with respect to them, would sealing it have any effect.

The defendant argues, however, that "[p]rior to this episode, [he] was a well regarded career teacher, and had planned to continue in that vocation until retirement." The record of the charges against him will apparently remain available to public and private schools as well as other agencies that work with children. He also avers that it would be impossible to obtain a teaching position unless these records were sealed.

We grant that it is unlikely that a prospective school employer who could access the defendant's record would hire him, and we will assume that schools would not have access to the record if they were sealed (entities at certain "Required Access" levels may obtain even sealed records). The question before us, then, is whether the motion judge abused his discretion in declining to seal the defendant's records in order to allow him to overcome the disadvantage of being unable to obtain a teaching position because of his guilty pleas under Alford to two counts of unnatural and lascivious acts with a child under sixteen, his own student, as well as the other charged conduct.

The Commonwealth argues, among other things, that, since the defendant pleaded guilty to these charges, public safety requires that the record not be sealed. It argues that the disadvantages imposed by the availability of his record to schools are just, that more evidence of rehabilitation was needed, and that schools and agencies that work with children should know of the charges against him.

The defendant argues that this is not the case because his was an Alford plea. He argues that he has consistently maintained that he was wrongfully accused of the crimes by the alleged victim, that he has never admitted guilt, did not commit the crimes, and has nothing to rehabilitate. He claims the victim was paid $600 by the mother of his children to make these false accusations so that the mother could gain custody of their children, and argues, also citing Pon, that "[d]efendants who were subject to wrongful accusations present the strongest case for sealing."  He included in his motion a transcript of a telephone call and a photograph, both of which, he claims, corroborate his theory. He also states in an affidavit that, two years before he was indicted, "[a]fter a full review of the same evidence in the Probate and Family Court at a multi-day trial in June of 2009, [he] obtained custody of [his] two daughters. The judge did not credit the allegations of abuse of this neighbor child, which were a central issue in the case."

The Commonwealth argues, citing the characterization of its representations by the judge who denied the defendant's first petition, that it nol prossed the initial charges because the alleged victim was reluctant to testify, not because the charges were fabricated, and that the prosecutor continued to believe that the alleged victim's allegations were credible.

The mere fact that the defendant entered an Alford plea does not mean that the judge was bound to conclude that he was innocent of the crimes to which he pleaded, rather than guilty. And unless the defendant was, in fact, innocent, on all the facts and circumstances here, the decision not to seal his records was well within the scope of the judge's discretion.

We may assume without deciding that there would be strength in the defendant's argument if a court of competent jurisdiction entered a factual finding based on all the evidence that the precise allegations by the child that formed the basis of all the charges against the defendant in this case were fabricated. But no records from the Probate and Family Court that might indicate any such finding have been provided, and the defendant's affidavit, even if credited, which the judge was not bound to do, falls short of asserting that any such finding was made in the Probate and Family Court. In these circumstances, then, the defendant has not demonstrated any abuse of discretion or other error of law in the judge's decision. The order denying the defendant's petition to seal his criminal record is affirmed.


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  1. The prosecutor should have pressed the case, or obtained true guilty pleas, rather than negotiating for, and accepting, Alford pleas.

    The headline is substantially misleading, as at no point has the record been sealed, with denials at every proceeding seeking to seal.

    1. The question mark in the headline was my attempt to make clear that the post is about the question whether such sealing is proper, not about an actual instance of such sealing. (I was looking for a short way of conveying that, given that the headline is long enough as it is.) But I’ll change the subtitle to make clear what the body of the post makes clear, which is that indeed the request for sealing was denied.

  2. All pleas should be “Alford” pleas. Although forced confessions might make judges feel better, they have zero probative value.

  3. He pleaded guilty. Even if it was just for “legal” reasons, and didn’t admit factual guilt, it wasn’t innocence and was still guilty.

    Yes, I can imagine schools wanting to know that. And I can’t imagine schools hiring someone who has pleaded guilty to these sorts of actions. The legal liability alone…

    1. “He pleaded guilty. Even if it was just for ‘legal’ reasons, and didn’t admit factual guilt, it wasn’t innocence and was still guilty.”

      Out of all the POSSIBLE scenarios that lead to this, ONE possibility is that he didn’t actually do it, and is actually a pretty good teacher.

  4. I strongly dislike Alford pleas. I don’t think they should exist. A defendant should either admit factual guilt, or go to trial. Alford pleas cast doubt on criminal proceedings and create a lingering suspicion an injustice may have occurred.

    1. “Alford pleas cast doubt on criminal proceedings and create a lingering suspicion an injustice may have occurred.”

      Well, sure, if a defendant were permitted to say, “I only took the plea because I would be released immediately if I took it, and if I didn’t I would have to sit in jail awaiting trial and potentially do years if convicted”, then people might be suspicious than an injustice may have occurred. And if we make him say, “OK, I did it.” then people are far less likely to suspect that an injustice may have occurred. But is that a good thing?

      We have a system where we suppress, on pain of imprisonment, people’s claims that an injustice occurred. This is indefensible and probably should violate the first amendment. If a defendant wants to continue to argue that he is innocent, I may wish to hear and evaluate argument. And if I don’t, I don’t have to listen. Why should be allow the government to prevent me from hearing his argument?

      1. Nobody is prevented from claiming that they are factually innocent and that an injustice was done. However, the general public tends not to take such claims seriously, because nobody is prevented from claiming they are factually innocent, and the prisons are full of innocent men who never did nothin’. Makes it hard to pick out the few cases where it’s actually true.

        1. This is simply wrong. If you accept a plea and allocute, but claim elsewhere that you are factually innocent, the state will try to get the plea dismissed any make you undergo the trial penalty, which can amount to years in prison instead of probation. And you can be charged with perjury.

          1. ” If you accept a plea and allocute, but claim elsewhere that you are factually innocent, the state will try to get the plea dismissed any make you undergo the trial penalty”

            Says here “the state will”. You meant to say “the state may”. And even then, the most likely result is… nothing.

            “And you can be charged with perjury.”

            Approximately how many prosecutions for perjury have you personally witnessed?

            Anyways, I read somewhere that Congress isn’t allowed to pass laws that abridge the rights of American citizens to say things, or something like that.

            1. Sorry James, you have no clue what you’re talking about.

              And in addition to forced allocations, there are all sorts of other penalties for defendants who continue to claim innocence after conviction. “Acceptance of responsibility” is sentencing factor, which means that convicted defendants who refuse to confess can receive significantly longer sentence than those who confess. And it can be a condition of probation.

              1. “Sorry James, you have no clue what you’re talking about. ”

                A naked assertion with nothing to back it up? I wonder how seriously I should take this? Not at all sounds about right.

    2. “A defendant should either admit factual guilt, or go to trial.”

      If defendant (and defendant’s counsel) concede that the available evidence points to guilt despite the fact that the defendant didn’t do it, what’s the point of holding a trial? It costs the state and the defendant a big pile of money and achieves nothing.
      The reason Alford pleas cast doubt on criminal proceedings and create suspicion that injustice may have occurred is because sometimes available evidence suggests guilt where there is none. In other words, sometimes circumstances suggest that the wrong suspect is guilty, and injustice is done as a result. Making the defendant lie and say they did it doesn’t really improve the situation, and obscures the fact that an injustice was done.

      1. “The reason Alford pleas cast doubt on criminal proceedings and create suspicion that injustice may have occurred”

        In my opinion, ALL plea deals cast doubt on criminal proceedings. There are way to many cases out there where people who plead guilty were later exonerated.

        If a guilty defendant wants to plead guilty and throw himself on the mercy of the court with out a deal with the prosecutor, good for him.

        However, every plea deal with a prosecutor results in injustice.

        Either the defendant was guilty as charged and got off light or there is a very high risk that an innocent defendant was coerced into a guilty plea.

        1. “In my opinion, ALL plea deals cast doubt on criminal proceedings.”

          I’m sure the criminals are grateful for that.

  5. This is why you lawyer up and fight cases on their merits. I was sued in federal court and knew it was a fraud. I lawyered up and forced a settlement from the accuser.

    If people go after your reputation, you go after theirs twice as hard.

    1. Knowing something is a fraud is one thing, and being able to prove it is quite another thing. And if you’re sitting in jail, waiting, for the two years prior to trial, you might look to another answer.

  6. If this teacher gets his record expunged or erased or sealed is he no longer a rapists in the eyes of the law? If so could he not get a new teacher’s certificate and teach young children again. If his record is cleared then when they run a background check there would not be a record to stop him from teaching.
    I don’t have a solution for this legal question but I don’t think that his record should be cleared.

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