A recent Massachusetts case carries interesting implications in the continuing expansion of evidence to corroborate child molestation crimes. Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 54 N.E.3d 1120 (2016). Mr. Gilman was a middle school teacher. His victim was a 12-year-old female student.
Trial testimony indicated Defendant’s sexual assaults against the student did not happen quickly. The relationship development between the Defendant and his victim could be described as classic grooming. This started by Defendant being a chaperone at a school sponsored camping field trip, where he spent a lot of time with the victim. At the end of the field trip, he gave the victim his cell phone number. They started sending text messages to each other.
After another school sponsored summer field trip, they became “friends” on Facebook and frequently chatted with each other. They continued chatting when school started in the fall of the victim’s 7th grade year. She had the Defendant as her drama club director and music teacher.
Chats between the two was initiated by a text alert. The chats involved personal information known only to them, and often occurred at night. The court held these chats would be viewed as demonstrating their “developing affection” for each other.
The Defendant chatted about his desire to kiss the victim before any kiss actually occurred. The Defendant subsequently met the victim at an after-school dance. He texted her to meet him, and they did so in his music classroom. The Defendant touched the victim’s hips and kissed her. Later the same evening, the Defendant and victim chatted about this kiss on Facebook.
Defendant frequently reminded the victim to delete the messages, particularly when the victim told him one of her friends saw a message from him.
When the Defendant was prosecuted for his sexual contact, he moved to exclude the Facebook chat messages because the messages were irrelevant and inflammatory, among other things.
The “irrelevancy” argument was not successful, because the Defendant’s chat messages stated things like “Damn…I love you so much, and I will lose my job, my life, and I will go to jail.” The Defendant engaged the victim in sexual conversation, including, eventually, what he wanted to do to her sexually. He blatantly stated “we already broke the law.”
There was a progression in the Defendant’s behavior toward the victim, including more serious sexual contact, including the sexual Facebook chats. The Defendant and victim frequently talked about future sexual activity on Facebook, including what the Defendant would do to the victim.
The victim learned from the Defendant that his wife had seen conversations he had with the victim on their computer. The victim wrote in response, “I do love you and don’t want anything to happen to you. It’s you I’m worried about. I love you so much. We have to stop before we do get caught and then you will go to jail.”
The court held the Facebook conversations “illustrated the Defendant cultivated the victim’s feelings toward him, educated her about various forms of sexual interaction, and manipulated her insecurities to cause her to fear the loss of his affections.” The court overruled Defendant’s inflammatory objection because these “conversations undoubtedly caused prejudice to the Defendant, [but] the prejudice flowed directly from their properly probative effect to illustrate the development of [their] relationship. The prejudice was …. not unfair.”
Social media is one of the first places law enforcement investigates to determine the nature of relationships.
Almost all schools have a “no social media” policy between teachers and students, and notify the teacher that any communication is not private and grounds for employment discipline. This case demonstrates why schools should have concerns about teacher-student internet communications.
Mr. Gilman knew the rules, but was so out of control that he ignored the risks. Communicating with a student on Facebook can never look good, as Mr. Gilman recognized. Another teacher at the school, a friend of Mr. Gilman, asked “Did you do it?” Mr. Gilman, replied “No, but it will look like I did.”
The Gilman jury found “aggravating” factors in the “age difference” between the Defendant and victim, and because Defendant was a “mandated reporter.” In Washington, both of these aggravating factors are contemplated in the crime charged (Rape of a Child, Failure to Report Abuse of a Child), and cannot be used to seek an exceptional sentence outside the sentencing guidelines.
A teacher taking advantage of a position of authority may be an aggravating factor, and it certainly appears Mr. Gilman methodically used his position to take advantage of his victim.
If you have a criminal matter and you would like to consult with a lawyer, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.