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SJC-12351

              COMMONWEALTH   vs.   WILBUR W., a juvenile.



            Essex.    January 10, 2018. - April 25, 2018.

  Present:    Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
                                 JJ.


Rape.  Strict Liability. Constitutional Law, Vagueness of
     statute, Equal protection of laws. Due Process of Law,
     Vagueness of statute, Selective prosecution. Selective
     Prosecution.



     Complaint received and sworn to in the Essex County
Division of the Juvenile Court Department on August 24, 2009.

     The case was tried before José Sánchez, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Joseph Maggiacomo, III, for the juvenile.
     Marina Moriarty, Assistant District Attorney, for the
Commonwealth.
     The following submitted briefs for amici curiae:
     Yale Yechiel N. Robinson, pro se.
     Robert F. Hennessy & Merritt Schnipper for Youth Advocacy
Division of the Committee for Public Counsel Services.
     Gary D. Buseck, Bennett H. Klein, & Patience Crozer for
GLBTQ Legal Advocates & Defenders & another.
     Marsha L. Levick, Riya S. Shah, & Lisa Swaminathan, of
Pennsylvania, for Juvenile Law Center & another.
                                                                      2



    GAZIANO, J.    The crime of statutory rape, G. L. c. 265,

§ 23, is a strict liability offense.    To prove statutory rape,

the Commonwealth is required to establish that the accused had

sexual intercourse with a person who was less than sixteen years

old at the time.   See Commonwealth v. Bernardo B., 453 Mass.

158, 172 (2009).   As a matter of law, a person below the age of

sixteen is deemed incapable of consenting to sexual intercourse.

Therefore, lack of consent is not an element of the offense, and

the intent of the accused is not relevant.     See G. L. c. 265,

§ 23; Commonwealth v. Miller, 385 Mass. 521, 522 (1982).     When

two minors have consensual sexual relations, both of whom are

members of the class the statute is designed to protect, each

has committed a statutory rape.     This case requires us to decide

whether, as applied to a juvenile offender under the age of

sixteen, a conviction of statutory rape was constitutional,

where the juvenile maintains that he was involved in consensual

sexual experimentation with another child.

    In 2009, a delinquency complaint issued against the

juvenile, charging him with two counts of rape of a child by

force, G. L. c. 265, § 22A, and dissemination of child

pornography, G. L. c. 272, § 29B.    At the time of the alleged

offenses, the juvenile was twelve years old and the victim was

eight years old.   Following a trial in the Juvenile Court, a
                                                                    3


jury found the juvenile delinquent on the lesser included

offenses of statutory rape.    The juvenile filed a notice of

appeal from the adjudication of delinquency, and we allowed his

motion for direct appellate review.

    The juvenile contends that enforcement of the strict

liability statutory rape charge against him violates his Federal

and State constitutional rights to due process and equal

protection.    He argues that imposition of criminal liability on

a child for a strict liability offense, where the premise of the

offense is that a child under sixteen lacks the capacity to

understand and consent to the conduct, is fundamentally unfair.

The juvenile maintains that a child under sixteen cannot be

deemed to understand and assume the legal risks of engaging in

sexual activity with another child under the age of sixteen, as

the statute requires of an adult, and that the imposition of

criminal responsibility for peer-aged sexual experimentation is

contrary to the statutory purpose of protecting children from

sexual abuse.   He also argues, for the first time on appeal,

that he should have been considered a victim of statutory rape,

and that the government wrongfully singled him out for

prosecution.    The issues the juvenile raises as to

experimentation among consenting juveniles are not before us in

this case, where the victim testified that he was afraid and

felt compelled to comply with the juvenile's demands.
                                                                    4


Accordingly, we conclude that, as applied in these

circumstances, enforcement of the statutory rape charge is

constitutional, and affirm the adjudication of delinquency.1

     1.    Background.   To determine whether statutory rape is

constitutional, as applied to the juvenile's conduct, we examine

the evidence in the light most favorable to the Commonwealth.

See Commonwealth v. Oakes, 407 Mass. 92, 95 (1990); Commonwealth

v. Bohmer, 374 Mass. 368, 370 (1978).     In the summer of 2009,

the victim was an eight year old third grader, who lived with

his father in a city near Boston.    The victim met the juvenile,

who was twelve years old and a seventh grader, when the victim

moved into the neighborhood earlier that year.     The victim and

the juvenile became friends.    They played together at the park

and with other children in the neighborhood, and they played

video games at the victim's apartment.     Carol,2 who had been

friends with the victim's mother, was his live-in caretaker.

Carol also watched the juvenile on occasion, and the juvenile

referred to her as "Grammy."

     On August 10, 2009, as he had on previous occasions, the

juvenile visited the victim for a sleepover while the victim's

     1 We acknowledge the amicus briefs submitted by the youth
advocacy division of the Committee for Public Counsel Services;
the Juvenile Law Center and the Children and Family Justice
Center; GLBTQ Legal Advocates & Defenders and the American Civil
Liberties Union of Massachusetts; and Yale Yechiel N. Robinson.

     2   A pseudonym.
                                                                      5

father was working a late shift.   During the evening, the victim

and the juvenile went into the victim's bedroom to play a video

game.   While both boys were on the bed taking turns using the

video game controller, the juvenile told the victim to stand

next to a bureau.    The bureau, which was "the same height as

[the victim], maybe a little bit taller," was positioned on an

interior wall adjacent to the bedroom door, such that, when

standing in the space next to the bureau, the two boys were not

visible from the doorway.    The victim did not want to do this,

but complied because the juvenile told him to do it.

     The juvenile instructed the victim to "pull down [his]

pants" so that he could put his "penis" in the victim's "butt."

The victim was "shivering" and "scared."    He testified:

     Q.:   "And what did you think or feel when he told you that?

     A.:   "Like, I was kinda like shivering, like, scared."

     Q.:   "Okay.   And why were you scared?"

     A.: " Because I didn't, like -- because I was, like, I
     didn't like, like -- like, I was scared because --"

     Q.:   "Did you want to do that?"

     A.:   "No."

     The juvenile pulled down his own pants, and told the victim

to put his mouth on the juvenile's penis.       The victim complied

for "two seconds" because the juvenile was "bigger," and he was

afraid of what the juvenile would do to him.      The juvenile then
                                                                  6


inserted his penis in the victim's "butt."   The victim testified

that it hurt, and he almost cried.3

     Because the boys were too quiet, Carol announced she was

entering the room to check on them.   The juvenile told the

victim to get on the bed.   Both boys pulled up their pants and

sat on the bed.   When Carol entered the room, she found them

sitting on the bed playing the video game.   The victim did not

say anything to Carol that night because he did not want the

juvenile to punch him.

     The victim's father drove the victim to day camp the next

morning.   Before leaving for camp, the victim ran into Carol's

room to say goodbye, and she took his cellular telephone.

Later, she found a photograph of a boy's penis on the cellular

telephone.   When Carol picked up the victim from camp, she asked


     3 The juvenile points out that the victim's testimony on
cross-examination was not entirely consistent with his testimony
on direct examination, or during an earlier sexual abuse
intervention network (SAIN) interview, and the victim agreed on
cross-examination that he had described certain events
differently from how he had described them at the SAIN
interview. During cross-examination, specific portions of the
victim's SAIN interview were introduced as prior inconsistent
statements. The juvenile notes that, in addition to testifying
that he was scared because the juvenile was "bigger," and
because the victim thought that the juvenile "might do
something" if the victim did not comply, the victim also
testified that the reason he complied was "to get [the juvenile]
to stop asking"; that the juvenile did not hit or threaten the
victim; and did not push the victim behind the dresser. On
cross-examination, the victim also testified somewhat
differently about the juvenile's actions with his "butt," and
whether the juvenile's act "hurt."
                                                                     7

him about the photograph.    The victim told her that the juvenile

had taken it.   Carol initially scolded the victim for having

inappropriate photographs on his telephone, and told him that he

"could get into a lot of trouble."    During the drive home, the

victim asked, "Well, what does it mean when someone tries to put

their private into your butt?"    Carol asked if someone had done

that to him.    The victim "shook his head yes."   Carol asked,

"Who?"    The victim answered that it was the juvenile.   Carol

reported the victim's statements to the victim's father and the

police.

    At the close of the evidence, the judge instructed the jury

on rape of a child with force, pursuant to G. L. c. 265, § 22A,

including the theory of constructive force, and the lesser

included offense of statutory rape.    He also instructed the jury

on dissemination of child pornography.    The jury returned

delinquency findings on the lesser included offense of statutory

rape, and found the juvenile not delinquent on the charge of

dissemination of child pornography.    The judge sentenced the

juvenile to three years of probation with special conditions.

Following an evidentiary hearing, the judge allowed the

juvenile's motion for relief from the obligation to register as

a sex offender, pursuant to G. L. c. 6, § 178E (f), finding that

the juvenile did not pose a risk of reoffending or a danger to

the public.
                                                                  8


     2.   Discussion.   The juvenile raises three arguments

concerning the constitutionality of statutory rape where both

the victim and the individual charged with the offense are

juveniles.4   First, he contends that his adjudication of

delinquency violates his right to the due process of law because

the Legislature did not intend to impose strict liability on a

person below the age of sixteen.   Second, he contends that

statutory rape fosters arbitrary and discriminatory enforcement

and is therefore void for vagueness.    Third, the juvenile

contends that he was unfairly selected for prosecution in

violation of his right to equal protection under the law.5




     4 The juvenile did not assert these constitutional claims in
the Juvenile Court. As a general rule, we "decline to consider
constitutional issues raised for the first time on appeal in
order to avoid an unnecessary constitutional decision"
(quotation omitted). Commonwealth v. Guzman, 469 Mass. 492, 500
(2014). Here, however, we exercise our discretion to resolve
the constitutional issues because the record is fully developed,
and the appeal presents important questions of public concern.
See Gagnon, petitioner, 416 Mass. 775, 780 (1994).

     5 The juvenile also asserts error in the judge's decision to
deny his motion for a required finding of not delinquent on the
charge of rape of a child by force. In denying the juvenile's
motion for a required finding, the judge stated, "As to the
forcible rape of a child, I will concede that the issue of
constructive force is a close one, but based on the testimony I
find that there is sufficient evidence to at least put that
issue before the jury." The juvenile argues that the evidence,
considered in the light most favorable to the Commonwealth, was
insufficient to prove the element of physical or constructive
force. Because the juvenile was acquitted of the charge, the
issue whether the Commonwealth proved constructive force is not
properly before us.
                                                                   9


    a.   Due process challenge.   General Laws c. 265, § 23, as

appearing in St. 1974, c. 474, § 3, provides:   "Whoever

unlawfully has sexual intercourse or unnatural sexual

intercourse, and abuses a child under [sixteen] years of age,

shall be punished . . . ."   In Commonwealth v. Gallant, 373

Mass. 577, 581-585 (1977), and Bernardo B., 453 Mass. at 170-

172, we traced the history of statutory rape from its English

common-law roots to the most recent revisions of G. L. c. 265,

§ 23, in 1974.   Although G. L. c. 265, § 23, has evolved over

time, our long-standing interpretation of the statute is that it

imposes strict liability for anyone who engages in "sexual

intercourse or unnatural sexual intercourse" with a person who

is less than sixteen years old.   See Commonwealth v. Murphy, 165

Mass. 66, 70 (1895).   See, e.g., Miller, 385 Mass. at 522;

Commonwealth v. Moore, 359 Mass. 509, 514-515 (1971).

Accordingly, the only elements the Commonwealth is required to

prove are "(1) sexual intercourse or unnatural sexual

intercourse with (2) a child under sixteen years of age."

Bernardo B., supra at 172, quoting Miller, supra.

    The juvenile contends that the imposition of strict

liability for statutory rape, as applied to his case, violates

due process rights secured by the United States Constitution and
                                                                  10


the Massachusetts Declaration of Rights.6   He maintains that the

Legislature's decision to impose strict liability in cases of

statutory rape rests on two related policies:   that vulnerable

children need to be protected from the dangers of sexual abuse,

and that adults assume the risk inherent in having sexual

relations with a child who is younger than the statutory age of

consent.   See Murphy, 165 Mass. at 69-70 ("it is deemed best to

require everybody at his peril to ascertain whether his act

comes within the legislative prohibition").   See also United

States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991), cert.

denied, 502 U.S. 1042 (1992) (statutory rape laws protect

children from sexual abuse "by placing the risk of mistake as to

a child's age on an older, more mature person").   The juvenile

argues that, unlike an adult, an individual who is under the age

of sixteen has limited capacity to make reasoned choices or to

understand the consequences of his or her behavior.   As a

result, he contends, the Legislature's rationale for imposing

strict liability "make[s] little sense" when applied against a

twelve year old engaged in peer-aged sexual experimentation.


     6 A facial challenge, by contrast, would have required the
juvenile to prove that no set of circumstances exists under
which the statute would be valid. See United States v. Salerno,
481 U.S. 739, 745 (1987). This is a difficult burden to meet.
"A facial challenge to the constitutional validity of a statute
is the weakest form of challenge, and the one that is the least
likely to succeed." Blixt v. Blixt, 437 Mass. 649, 652 (2002),
cert. denied, 537 U.S. 1189 (2003).
                                                                    11


    i.   Standard of review.    Substantive due process prohibits

governmental conduct that "shocks the conscience" or infringes

on rights "implicit in the concept of ordered liberty" (citation

omitted).    Commonwealth v. Fay, 467 Mass. 574, 583, cert.

denied, 135 S. Ct. 150 (2014).    "In substantive due process

analysis, the nature of the individual interest at stake

determines the standard of review . . . ."    Aime v.

Commonwealth, 414 Mass. 667, 673 (1993).   If a statute uses a

suspect classification or implicates a fundamental right, we

apply strict judicial scrutiny.    Goodridge v. Department of Pub.

Health, 440 Mass. 309, 330 (2003).   See Doe v. Acton-Boxborough

Reg. Sch. Dist., 468 Mass. 64, 75 (2014) (classifications based

on gender, race, color, creed, and national origin considered

suspect); Gillespie v. Northampton, 460 Mass. 148, 153 (2011)

("fundamental right is one that is deeply rooted in this

Nation's history and tradition" [quotation and citation

omitted]).   Under strict scrutiny analysis, a statute satisfies

due process only when it is "narrowly tailored to further a

legitimate and compelling governmental interest."    Aime, supra.

    When a statute is not subject to strict scrutiny in

considering a substantive due process challenge, it is subject

to rational basis review.    Gillespie, 460 Mass. at 153.     For due

process purposes, a statute has a rational basis if it "bears a

real and substantial relation to the public health, safety,
                                                                  12


morals, or some other phase of the general welfare."   Goodridge,

440 Mass. at 330.   See Gillespie, supra ("a statute is

constitutionally sound if it is reasonably related to the

furtherance of a valid State interest").   In reviewing the

constitutionality of a statute, we are mindful that "all

rational presumptions are made in favor of the validity of every

legislative enactment."   Commonwealth v. Finnigan, 326 Mass.

378, 379 (1950).

     The juvenile has not argued that imposition of strict

liability for statutory rape violates a fundamental right,7 or

that he was subject to a suspect classification.   We therefore

examine his claim that the legitimate purposes of statutory rape

     7 Two of the amicus briefs do urge application of a strict
scrutiny standard of review in this case. The youth advocacy
division of the Committee for Public Council Services (CPCS)
urges this court to apply strict scrutiny to its due process
analysis based on the theory that enforcement of statutory rape
liability implicates a minor's fundamental right of privacy. To
support this argument, the brief cites Lawrence v. Texas, 539
U.S. 558, 578-579 (2003), in which the United States Supreme
Court extended constitutional privacy protections to "two adults
who, with full and mutual consent from each other," engaged in
same-sex intimate conduct. In that case, however, the Court
emphasized that the protected liberty interest did not extend to
minors and did "not involve persons who might be injured or
coerced." Id. at 578. In their joint amicus brief, GLBTQ Legal
Advocates & Defenders and the American Civil Liberties Union of
Massachusetts rely on decisions in other States recognizing that
statutory rape charges may interfere with a minor's protected
right to privacy. See B.B. v. State, 659 So. 2d 256, 258-260
(Fla. 1995); In re G.T., 170 Vt. 507, 515-518 (2000). We leave
the issue whether enforcement of statutory rape laws implicates
a fundamental privacy right of minors for another day, when it
is properly raised, and fully briefed, by the parties. See
Pineo v. Executive Council, 412 Mass. 31, 35 n.6 (1992).
                                                                      13


strict liability are not served by his adjudication of

delinquency under the rational basis standard of review.

       ii.   Whether imposition of strict liability for statutory

rape where the perpetrator is under sixteen offends due process.

Although statutes that do not require proof of mens rea are

disfavored, see Staples v. United States, 511 U.S. 600, 606

(1994), the Legislature is vested with wide latitude to declare

what constitutes a crime; this includes the authority to create

strict liability offenses.     See Commonwealth v. Peterson, 476

Mass. 163, 165 (2017); Commonwealth v. Chavis, 415 Mass. 703,

709 n.9 (1993); Commonwealth v. Alverez, 413 Mass. 224, 229-233

(1992).      The Legislature's exercise of its authority to define

strict liability offenses extends to imposition of strict

liability for the offense of statutory rape.      "Strict criminal

liability is not necessarily a denial of due process of law, and

in the case of statutory rape it is not."      Miller, 385 Mass. at

525.   See Commonwealth v. Knap, 412 Mass. 712, 715 (1992) (mens

rea is general principle of jurisprudence and not

constitutionally mandated in child sexual assault cases).      See

also Morissette v. United States, 342 U.S. 246, 250-251 & n.8

(1952) (recognizing that, while guilt generally requires proof

of culpable mental state, exception imposing strict liability

for sexual offenses against children, designed to protect

children, is warranted).
                                                                  14


    We do not agree with the juvenile's argument that the

Legislature did not intend to prohibit anyone from having sexual

intercourse with a person below the age of sixteen.    The

Legislature established an age of consent because children lack

the maturity to "understand the physical, mental, and emotional

consequences of intercourse."   See Commonwealth v. Dunne, 394

Mass. 10, 20 n.7 (1985).   More recently, we have noted that

there is "no doubt" that the Legislature enacted statutory rape

laws in order to "protect all children under sixteen years old

from sexual abuse."   Bernardo B., 453 Mass. at 171.   See

Gallant, 373 Mass. at 583.

    Moreover, the facts in this case, considered in the light

most favorable to the Commonwealth, do not support the view, as

the juvenile suggests, that this was a case of juvenile

experimentation among peers rather than a case of sexual abuse.

To the contrary, the record at trial indicates that the juvenile

was the aggressor, who arranged the victim's position behind a

dresser in order to avoid detection.   The jury were warranted in

finding that the victim, a boy four years younger than the

juvenile, complied with the juvenile's commands to stand next to

the bureau, pull down his pants, and perform oral sex on the

juvenile because he was frightened and did not want to risk

disobeying the juvenile's instructions.   On the day after the

incident, the victim displayed his immaturity by asking, "Well,
                                                                    15


what does it mean when someone tries to put their private into

your butt?"   Given this, the juvenile's characterization of the

incident as that of consensual sexual experimentation is

unavailing.

    The juvenile's arguments are unable to overcome the

presumption that the Legislature acted reasonably and rationally

in imposing strict liability for anyone who has sexual

intercourse with a child under the age of sixteen.     There is a

rational basis for protecting all children from sexual abuse,

whether the offender is an adult or a juvenile under the age of

sixteen.

    b.     Arbitrary enforcement challenge.   The juvenile argues

also that G. L. c. 265, § 23, is unconstitutionally vague within

the meaning of the due process clause of the Fourteenth

Amendment to the United States Constitution.    "The principles of

the vagueness doctrine are well settled in our law."

Commonwealth v. Reyes, 464 Mass. 245, 248 (2013).    Due process

requires that criminal statutes "define the criminal offense

[1] with sufficient definiteness that ordinary people can

understand what conduct is prohibited and [2] in a manner that

does not encourage arbitrary and discriminatory enforcement."

Skilling v. United States, 561 U.S. 358, 402-403 (2010), quoting

Kolender v. Lawson, 461 U.S. 352, 357 (1983).    See Grayned v.

Rockford, 408 U.S. 104, 108 (1972); Commonwealth v. Quinn, 439
                                                                  16


Mass. 492, 499-500 (2003).   With respect to arbitrary

enforcement, the United States Supreme Court has observed that

"the most meaningful aspect of the vagueness doctrine is not

actual notice, but the other principal element of the doctrine -

- the requirement that a legislature establish minimal

guidelines to govern law enforcement."    Smith v. Goguen, 415

U.S. 566, 574 (1974).    See Kolender v. Lawson, supra at 358

("where the [L]egislature fails to provide such minimal

guidelines, a criminal statute may permit a standardless sweep

[that] allows policemen, prosecutors, and juries to pursue their

personal predilections" [quotation and citation omitted]);

Commonwealth v. McGhee, 472 Mass. 405, 414 (2015) (lack of

reasonable guidelines for law enforcement encourages arbitrary

arrests and prosecutions).   "It is well established that

vagueness challenges to statutes which do not involve . . .

freedoms [under the First Amendment to the United States

Constitution] must be examined in light of the facts of the case

at hand."   Gallant, 373 Mass. at 581, quoting United States v.

Powell, 423 U.S. 87, 92 (1975).   See Commonwealth v. Adams, 389

Mass. 265, 271 (1983).   See also Bohmer, 374 Mass. at 371 n.6

(1978) ("In the context of a vagueness challenge, the defendants

have no standing to assert the rights of others").

    In Commonwealth v. Williams, 395 Mass. 302, 303-306 (1985),

for example, we considered a due process challenge on vagueness
                                                                   17


grounds to the city of Boston's "sauntering and loitering"

ordinance.   The ordinance prohibited sauntering and loitering

"in such a manner as to obstruct . . . travellers."      Id. at 305.

We concluded that the ordinance was unconstitutionally vague and

arbitrary because it failed to set "minimal guidelines to govern

law enforcement."   Id. at 306.   Without standards to

"distinguish between the lawful conduct of mere sauntering and

loitering and that which escalates to obstructing travelers,"

police officers possessed unfettered discretion to decide which

individuals to charge.    Id.   See Kolender v. Lawson, 461 U.S. at

360-361 (statute requiring individuals to carry "'credible and

reliable' identification" unconstitutionally vague on its face

"because it encourages arbitrary enforcement by failing to

describe with sufficient particularity what a suspect may do in

order to satisfy the statute"); Papachristou v. Jacksonville,

405 U.S. 156, 167-171 (1972) (vagrancy ordinance void for

vagueness due to broad scope and imprecise terms); Commonwealth

v. Sefranka, 382 Mass. 108, 110 (1980) (term "lewd, wanton and

lascivious person" unconstitutionally vague).

    The juvenile's challenge on vagueness grounds focuses on

the potential for arbitrary enforcement of the statutory rape

statute.   He points out that, in instances of peer-aged,

consensual sexual experimentation, the line between victim and

offender is blurred.     He argues that, because this case involved
                                                                  18


an incident of sexual experimentation, the Commonwealth's

decision only to charge one of the willing participants with a

criminal offense "is the very definition of discriminatory

enforcement."

    The Commonwealth points out, correctly, that the juvenile

is unable to demonstrate arbitrary enforcement in this case,

involving a frightened eight year old being compelled by the

commands of an individual four years his senior.    As the

Commonwealth puts it, the juvenile's labeling of himself as both

offender and victim "is belied by the inconvenient facts of the

case."   We discern no hint of arbitrary enforcement here,

because the prosecutor reasonably could have concluded that the

juvenile was not a victim of a sexual assault.     Not only was

there a four-year age gap between the juvenile, a seventh

grader, and the victim, a third grader, but the juvenile

initiated the encounter by instructing the victim to go where

they would not be seen from the doorway.   The juvenile then

ordered the victim to pull down his pants and to engage in oral

and then anal intercourse.   The victim testified at different

points that, although he complied with the juvenile's commands,

he did not want to "do that," he was afraid of what the juvenile

would do to him if he did not comply, he was "scared," and he

was "shivering."
                                                                      19


       We are not persuaded by the cases from other jurisdictions

upon which the juvenile relies.      See B.B. v. State, 659 So. 2d

256 (Fla. 1995); In re D.B., 129 Ohio St. 3d 104, cert. denied,

565 U.S. 1100 (2011); In the Interest of B.A.M., 806 A.2d 893

(Pa. Super. Ct. 2002); In re G.T., 170 Vt. 507 (2000).        We note,

first, that these decisions are inapposite, as they involve

consensual sexual relations between peer-aged minors.        In one

case, the Supreme Court of Florida found that an adjudication of

delinquency violated the juvenile's constitutional privacy

interests "as applied to this [sixteen year old]."       See B.B.,

659 So. 2d at 260.       In so holding, the court noted that the

State's sole interest was protecting the sixteen year old victim

from "the sexual activity itself," as opposed to protecting her

from sexual exploitation.       Id. at 259-260.   In another such

case, an intermediate Pennsylvania appellate court vacated an

adjudication of delinquency after concluding that a statute

designed to protect younger children from exploitation was not

intended to permit punishment of only one of two eleven year old

boys, who both willing participated in experimental sexual

intercourse.      See In the Interest of B.A.M., 806 A.2d at 894,

898.       Similarly, the Supreme Court of Vermont's holding in In re

G.T., 170 Vt. at 516-518, is inapplicable to nonconsensual or

coerced sexual acts.8      We note also that, in another case where

       8   The reasoning in another case cited by the juvenile, In re
                                                                   20


the facts are similar to the situation here, the court in the

other jurisdiction reached a conclusion similar to the one that

we reach in this case.   See State v. Colton M., 366 Wis. 2d 119,

128-129 (Ct. App. 2015) (rejecting juvenile's arbitrary

enforcement claim where "record indicate[d] [the victim] was an

unwilling participant that had to be bribed, coerced, or

otherwise forced into sexual contact").

    Although we agree with the juvenile's observation that it

is possible that a juvenile under the age of sixteen could be

both a victim and an offender in a statutory rape case, those

circumstances are not presented here.

    c.   Selective enforcement challenge.   In addition, the

juvenile also raises an equal protection claim.   He argues that

he and the victim were similarly situated as children under the

age of sixteen engaged in consensual acts of sexual

experimentation.   In this view, the Commonwealth's decision to

single him out for prosecution violated his equal protection

rights secured by the Federal and State Constitutions.     See

Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 229-230


D.B., 129 Ohio St. 3d at 104-105, 108-109, is unclear. In that
case, the Supreme Court of Ohio declared that a prosecutor's
decision to charge a juvenile was "the very definition of
discriminatory enforcement," but did not discuss the factors
that went into that decision. See id. at 109. Compare In re
Welfare of B.A.H., 845 N.W.2d 158, 164 n.4 (Minn.), cert.
denied, 135 S. Ct. 208 (2014) (declining to follow reasoning of
In re D.B. because Ohio court did not address reason that
prosecutor's charging decision was discriminatory).
                                                                     21


(1983) (selective enforcement prohibited by Fourteenth Amendment

and arts. 1 and 10 of Massachusetts Declaration of Rights).

       A district attorney is vested with "wide discretion in

determining whether to prosecute an individual."     Commonwealth

v. Washington W., 457 Mass. 140, 142 (2010), quoting Bernardo

B., 453 Mass. at 167.     "This broad discretion rests largely on

the recognition that the decision to prosecute is particularly

ill-suited to judicial review.    Such factors as the strength of

the case, the prosecution's general deterrence value, the

[g]overnment's enforcement priorities, and the case's

relationship to the [g]overnment's overall enforcement plan are

not readily susceptible to the kind of analysis the courts are

competent to undertake."    Wayte v. United States, 470 U.S. 598,

607 (1985).

       Nonetheless, a prosecutor does not possess unbridled

authority to charge a citizen with a crime.     Wayte, 470 U.S. at

608.   "While some selectivity is permissible in criminal law

enforcement, the Federal and Massachusetts Constitutions

guarantee that the government will not proceed against an

individual based on an unjustifiable standard such as race,

religion, or other arbitrary classification" (quotation and

citation omitted).    Washington W., 457 Mass. 140, 142.   See

Franklin Fruit Co., 388 Mass. at 229-230; Commonwealth v. King,

374 Mass. 5, 20 (1977).    It is the judiciary's "solemn duty" to
                                                                     22


redress prosecutorial overreaching.    Bernardo B., 453 Mass. at

161.

       In Bernardo B., 453 Mass. at 168, we explained that a

defendant raising "a collateral attack on prosecutorial

decision-making" is required to make a "rigorous" showing in

order to overcome "the presumption of prosecutorial regularity."

Thus, the defendant bears the initial burden to "raise[] at

least a reasonable inference of impermissible discrimination,

including evidence that a broader class of persons than those

prosecuted violated the law, . . . that failure to prosecute was

either consistent or deliberate, . . . and that the decision not

to prosecute was based on an impermissible classification such

as race, religion, or sex" (quotation and citation omitted).

Id.    If a defendant meets this prima facie showing, the case

must be dismissed unless the Commonwealth is able to rebut the

inference of selective prosecution.    Id.   A defendant raising a

selective prosecution claim may do so "by introducing

statistical evidence or other data demonstrating that similarly

situated suspects or defendants are treated differently by the

prosecutor on the basis of impermissible categorizations."       Id.

       Ordinarily, a defendant makes a threshold showing of

selective prosecution before trial, and seeks discovery from the

Commonwealth in order to advance his or her claim.    See

Commonwealth v. Lora, 451 Mass. 425, 442 (2008).     In
                                                                    23


Bernardo B., 453 Mass. at 170, we addressed an allegation of

gender-based selective prosecution where "the boy and the three

[female] complaining witnesses appeared to have engaged in

mutually consensual acts of oral sex . . . [and] all four

children were under the age of consent."     Based on the

juvenile's threshold showing, we held that the juvenile was

entitled to discovery in order to conduct a further

investigation concerning his selective prosecution claim.     Id.

at 175-176.

    The juvenile raises his argument regarding selective

prosecution for the first time on appeal.     Based on the evidence

presented at trial, we conclude that he has not overcome the

presumption that the prosecution was initiated in good faith.

See Commonwealth v. Franklin, 376 Mass. 885, 894-895 (1978).

Unlike the juvenile in Bernardo B., there is no showing here

that the only distinction between the charged and uncharged

participants in consensual sexual conduct was some type of

impermissible classification such as gender, race, or religion.

As stated, the trial record does not support the juvenile's

contention that he and the victim were similarly situated

children under the age of sixteen.     The record reveals that they

were not.     The juvenile has not, therefore, raised a meritorious

claim of selective prosecution.     We do not foreclose the

possibility that, in some other case involving two juveniles, on
                                                               24


different facts, a juvenile might be able to present a valid

claim of selective prosecution, but that is not this case.

                                   Judgment affirmed.
     GANTS, C.J. (concurring in the judgment).   Under G. L.

c. 265, § 23, "[w]hoever unlawfully has sexual intercourse or

unnatural sexual intercourse, and abuses a child under [sixteen]

years of age, shall be punished by imprisonment in the [S]tate

prison for life or for any term of years or, except as otherwise

provided, for any term in a jail or house of correction."

Sexual intercourse with a child is a strict liability life

felony that requires registration as a sex offender unless the

sentencing judge relieves the defendant or delinquent child of

the obligation to register.   See G. L. c. 6, § 178C (defining

"sex offense" as, inter alia, "rape and abuse of a child under

[§] 23"); G. L. c. 6, § 178E (f) (allowing judge to waive sex

offender registration requirement where circumstances of offense

and offender's criminal history indicate that offender "does not

pose a risk of reoffense or a danger to the public").   In the

absence of evidence of marriage,1 statutory rape requires proof

of only two elements:   "(1) sexual intercourse or unnatural

sexual intercourse with (2) a child under sixteen years of age."


     1 A minor under the age of eighteen may lawfully marry in
Massachusetts with the approval of a judge where the child's
parents or legal guardian consent to the marriage. See G. L.
c. 207, § 25. The word "unlawfully" in G. L. c. 265, § 23,
suggests that sexual intercourse may be lawful where the
defendant is legally married to the child under sixteen years of
age. See Commonwealth v. Chretien, 383 Mass. 123, 130 (1981)
("It is widely recognized that use of the word 'unlawful' in
rape statutes signifies the incorporation of the common law
spousal exclusion").
                                                                      2


Ante at   , quoting Commonwealth v. Bernardo B., 453 Mass. 158,

172 (2009).   A defendant may not assert as a defense that he or

she reasonably believed that the child was sixteen years of age

or older, because the Legislature intended to exclude mistaken

belief as to the age of the victim as a defense to the crime.

See Commonwealth v. Miller, 385 Mass. 521, 523-524 (1982).     In

essence, where an adult has sexual intercourse with a young

person, the adult acts at his or her peril in the event the

young person turns out to be less than sixteen years of age.

See Commonwealth v. Murphy, 165 Mass. 66, 69-70 (1895).

    Where a sixteen year old has sexual intercourse with a

fifteen year old, there is no uncertainty in the law as to who

has committed the rape and who is the victim of the rape,

regardless of the circumstances of the sexual intercourse.     Even

if the fifteen year old encouraged the sixteen year old to have

sexual intercourse, only the sixteen year old has committed the

crime; the law would not permit the fifteen year old to be

charged with aiding and abetting the rape.   See Gebardi v.

United States, 287 U.S. 112, 123 (1932) ("It is not to be

supposed . . . that the acquiescence of a woman under the age of

consent would make her a co-conspirator with the man to commit

statutory rape upon herself").   See, e.g., United States v.

Amen, 831 F.2d 373, 381 (2d Cir. 1987), cert. denied, 485 U.S.

1021 (1988) ("When Congress assigns guilt to only one type of
                                                                    3


participant in a transaction, it intends to leave the others

unpunished for the offense").   But if that same fifteen year old

were to engage in sexual intercourse with another fifteen year

old, that fifteen year old is no longer treated under the law as

a victim.   Indeed, under § 23, both fifteen year olds would be

guilty of rape and abuse of a child -- each is both a

perpetrator of rape and a victim of rape, and their fate depends

entirely on whom the prosecutor chooses to prosecute because

conviction only requires proof of sexual intercourse.

    The power of a prosecutor to determine who is a rapist and

who is a victim in such circumstances is truly vast.    A survey

conducted by the United States Centers for Disease Control and

Prevention found that 24.1 per cent of ninth graders and 35.7

per cent of tenth graders reported having engaged in sexual

intercourse.   See United States Centers For Disease Control and

Prevention, United States Department of Health and Human

Services, Youth Risk Behavior Surveillance -- United States,

2015, at 26 (2016), https://www.cdc.gov/healthyyouth/data/yrbs

/pdf/2015/ss6506_updated.pdf [https://perma.cc/EH88-VFCZ].

Another study commissioned by the United States Department of

Health and Human Services found that 8.1 per cent of females and

12.5 per cent of males between the ages of fifteen and seventeen

reported having engaged in oral sex but not sexual intercourse.

See Copen, Chandra, & Martinez, United States Department of
                                                                     4


Health and Human Services, Prevalence and Timing of Oral Sex

with Opposite-Sex Partners Among Females and Males Aged 15-24

Years:   United States, 2007-2010, Nat'l Health Statistics

Reports, no. 56, at 5 fig. 2 (2012), https://www.cdc.gov/nchs

/data/nhsr/nhsr056.pdf [https://perma.cc/47QX-MXBD].      In

Massachusetts, a 2015 report surveying middle and high school

students found that 14.2 per cent of ninth graders and 30.6 per

cent of tenth graders reported having had sexual intercourse.

See Department of Elementary and Secondary Education &

Department of Public Health, Health & Risk Behaviors of

Massachusetts Youth, Executive Summary, at 60 (2015),

http://www.mass.gov/eohhs/docs/dph/behavioral-risk/youth-health-

risk-report-2015.pdf [https://perma.cc/XC68-B4Y6].      Notably,

23.8 per cent of the surveyed tenth graders reported having had

sexual intercourse in the last three months.   See id.    The most

common age of students enrolled in tenth grade in the United

States is fifteen.   See J.W. Davis & K. Bauman, School

Enrollment in the United States:   2008, at 6 (2011),

https://www.census.gov/prod/2011pubs/p20-564.pdf [https:

//perma.cc/2YYJ-YZDA] ("modal grade for [fifteen year olds] is

tenth grade").2


     2 See J.H. v. Commonwealth, 479 Mass. 285, 292 n.3 (2018),
citing United States Centers for Disease Control and Prevention,
Substance Use and Sexual Risk Behavior Among Teens (2017),
https://www.cdc.gov/healthyyouth/substance-use/pdf/dash-
                                                                    5


       To be sure, some ninth and tenth graders are older than

sixteen, and these studies are silent as to whether the sexual

partners of these students were under or over sixteen years of

age.    But we need not determine the precise percentage of

Massachusetts children under sixteen years of age who have had

sexual intercourse with another child who is under sixteen years

of age to recognize that, conservatively estimated, prosecutors

potentially have the ability to prosecute at least one in five

ninth and tenth graders for rape and abuse of a child.

       The court, in evaluating whether § 23 is

unconstitutionally vague in violation of the due process clause

of the Fourteenth Amendment to the United States Constitution,

appropriately recognizes that the void-for-vagueness doctrine

encompasses two separate concerns:     (1) fair notice, and (2)

arbitrary and discriminatory prosecutions.    "To satisfy due

process, 'a penal statute [must] define the criminal offense [1]

with sufficient definiteness that ordinary people can understand

what conduct is prohibited and [2] in a manner that does not

encourage arbitrary and discriminatory enforcement."     Skilling

v. United States, 561 U.S. 358, 402-403 (2010), quoting Kolender

v. Lawson, 461 U.S. 352, 357 (1983).    "Although the doctrine


substance-use-fact-sheet.pdf [https://perma.cc/Z4H6-TL9P]
("According to the 2015 National Youth Risk Behavior Survey
. . . [forty-one per cent] of high school students have . . .
had intercourse and [thirty per cent] of high school students
are currently sexually active").
                                                                   6


focuses both on actual notice to citizens and arbitrary

enforcement," the United States Supreme Court has recognized

"that the more important aspect of the vagueness doctrine 'is

not actual notice, but the other principal element of the

doctrine -- the requirement that a legislature establish minimal

guidelines to govern law enforcement."   Kolender, supra at 357-

358, quoting Smith v. Goguen, 415 U.S. 566, 574 (1974).   "Where

the [L]egislature fails to provide such minimal guidelines, a

criminal statute may permit 'a standardless sweep [that] allows

policemen, prosecutors, and juries to pursue their personal

predilections.'"   Kolender, supra at 358, quoting Smith, supra

at 575.   See Commonwealth v. Gallant, 373 Mass. 577, 580 (1977)

("laws must provide explicit standards for those who apply them"

in order to avoid arbitrary and discriminatory enforcement

[citation omitted]).

    Generally, the concerns about fair notice and arbitrary and

discriminatory enforcement go "hand in glove."   For example,

where a statute made it a crime to fail to give a "'credible and

reliable' identification" to a police officer, Kolender, 461

U.S. at 353, the Supreme Court noted that the statute "vest[ed]

virtually complete discretion in the hands of the police to

determine whether the suspect has satisfied the statute and must

be permitted to go on his way in the absence of probable cause

to arrest," id. at 358, and "confer[red] on police a virtually
                                                                      7


unrestrained power to arrest and charge persons with a

violation."   Id. at 360, quoting Lewis v. New Orleans, 415 U.S.

130, 135 (1974) (Powell, J., concurring in result).      Where

another statute made it a crime to "saunter[] and loiter[] 'in

such a manner as to obstruct . . . travellers'" (citation

omitted), Commonwealth v. Williams, 395 Mass. 302, 305 (1985),

we noted that the statute both "fail[ed] to provide a person of

common intelligence with sufficient notice of the offending

conduct," id., citing Papachristou v. Jacksonville, 405 U.S.

156, 164-165 (1972), and "fail[ed] to set minimal guidelines to

govern law enforcement."    Id. at 306.    Here, however, the

statute provides fair notice; any sexual intercourse with a

person under the age of sixteen is a rape.      But the clarity of

the crime does not obviate the danger of arbitrary and

discriminatory enforcement where both participants in the sexual

intercourse are under the age of sixteen, and are therefore both

rapists and rape victims.

    Historically, the crime of statutory rape used gender to

distinguish the perpetrator of the rape (the male) from the

victim of the rape (the female); until 1974, when G. L. c. 265,

§ 23, was amended, only sexual intercourse with "a female child

under 16 years of age" was a crime.       Compare St. 1974, c. 474,

§ 3, with St. 1966, c. 291.    The 1974 amendment removed the word

"female" and thereby eliminated any reference to the gender of
                                                                     8


the victim in order to further the Legislature's interest in

protecting all children from sexual abuse.    See Bernardo B., 453

Mass. at 171.    But the Legislature's salutary interest in gender

neutrality left no guidelines in § 23, not even minimal

guidelines, as it is currently interpreted, to guide police and

prosecutors in distinguishing the perpetrator of the rape from

the victim of the rape when both participants in the sexual

intercourse are under the age of sixteen.

    I emphasize the phrase "as it is currently interpreted"

because the language of § 23 does provide a means clearly to

distinguish the perpetrator of the rape from the victim, in that

§ 23 provides that "[w]hoever unlawfully has sexual intercourse

or unnatural sexual intercourse, and abuses a child under

[sixteen] years of age, shall be [guilty of a life felony]."

(emphasis added).    Generally, it is a "cardinal principle" of

statutory construction that courts "must give effect, if

possible, to every clause and word of a statute" (citation

omitted).    Loughrin v. United States, 134 S. Ct. 2384, 2390

(2014).     See, e.g., Advocate Health Care Network v. Stapleton,

137 S. Ct. 1652, 1659 (2017) (noting that "surplusage canon"

presumes "that each word [the Legislature] uses is there for a

reason"); Matter of Civil Investigative Demand Addressed to

Yankee Milk, Inc., 372 Mass. 353, 358 (1977) ("established

principle of statutory construction that every word in a statute
                                                                     9


should be given meaning"); Commonwealth v. Woods Hole, Martha's

Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967)

("[n]one of the words of a statute is to be regarded as

superfluous, but each [word] is to be given its ordinary meaning

. . . so that the enactment considered as a whole shall

constitute a consistent and harmonious statutory provision

capable of effectuating the presumed intention of the

Legislature" [citation omitted]).     If we were to comply with

this "cardinal principle" of statutory construction, a required

element of proof for the crime of statutory rape would be a

finding of "abuse."

    I recognize that we have not followed this "cardinal

principle" with respect to this crime, and have not required

proof of "abuse" as an element of the crime.    Our case law makes

clear that, where the accused is over the age of sixteen, the

prosecution need prove only the elements of sexual intercourse

and the age of the victim, and need not prove a separate element

of abuse.   See, e.g., Commonwealth v. Knap, 412 Mass. 712, 714

(1992); Commonwealth v. Dunne, 394 Mass. 10, 18 (1985); Miller,

385 Mass. at 522.     The explanation derives from the historical

evolution of the statute.     In 1692, the statute made it a crime

punishable by death "[i]f any man shall unlawfully and carnally

know and abuse any woman child, under the age of ten years."

See Province Laws 1692-1693, c. 19, § 12.     Where the crime is
                                                                   10


defined as carnal intercourse between a "man" and a girl under

the age of ten years, it is understandable why courts did not

read the statute to require a separate finding of abuse, because

abuse would inevitably be suffered by a girl under the age of

ten from sexual intercourse with a "man."   See Black's Law

Dictionary 746 (1st ed. 1891) (defining "man" as "male of the

human species above the age of puberty"); Black's Law Dictionary

11 (2d ed. 1910) (defining "abuse . . . of a female child" as

"[a]n injury to the genital organs in an attempt at carnal

knowledge [i.e., sexual intercourse], falling short of actual

penetration. . . .   But, according to other authorities, 'abuse'

is here equivalent to . . . rape").   Between 1886 and 1898, the

Legislature increased the age of consent from ten to thirteen,

then to fourteen, and then to sixteen years of age.    Bernardo

B., 453 Mass. at 171.   But the language of the statute --

"carnally know and abuse any woman child" -- was not altered.

Nor did this language change when the statute was amended in

1886 to delete "[i]f any man" and replace that phrase with

"[w]hoever," which broadened the scope of potential perpetrators

beyond post-pubescent "men."   St. 1886, c. 305.   Nor did this

language change in 1974 when the word "female" was deleted, so

that sexual intercourse with any child, male or female, under

the age of sixteen became statutory rape.   In essence, "abuse"

was not interpreted to be a separate element because the act of
                                                                    11


sexual intercourse with a child alone was understood to

constitute abuse, so abuse was implied as a matter of law.

    This interpretation of the statute is permissible where the

defendant is over sixteen years of age and the victim is under

sixteen, because it is plain then who is the perpetrator of the

rape and who is the victim.    But this interpretation cannot

survive where both participants in the sexual intercourse are

under sixteen, because that would mean that, as a matter of law,

both are deemed to have been abused.    Where the Legislature

explicitly provides that the crime of statutory rape requires

the abuse of a child, and where such abuse is not implicit in

the act of sexual intercourse when both participants are under

the age of sixteen, it is reasonable in these circumstances to

require a finding of abuse as a separate and distinct element of

the crime of statutory rape.    With such an element, the risk of

arbitrary enforcement that arises from the absence in § 23 of

even minimal guidelines to govern law enforcement when both

participants in the sexual intercourse are under sixteen would

be eliminated and the statute would be saved from constitutional

infirmity.

    Because this would be a new interpretation of § 23, I would

require proof of the element of "abuse" only prospectively,

applying this requirement only to trials or pleas commenced

after the date of this opinion.    I note that, although this is a
                                                                     12


new interpretation of the elements of proof required to prove a

violation of § 23 where both participants in the sexual

intercourse are under the age of sixteen, I am aware of no

statutory rape case in Massachusetts where both participants in

the sexual intercourse were under the age of sixteen in which we

were asked to consider whether abuse is implicit in the act of

intercourse or must separately be proved under § 23.     The

interpretation of the statute that treats the phrase "abuses a

child" as meaningless surplusage or as implied as a matter of

law has never before been analyzed by this court in this

context.

    I concur in the judgment rather than dissent because I

agree with the court that, based on the facts of this case,

there is "no hint of arbitrary enforcement here, because the

prosecutor reasonably could have concluded that the juvenile was

not a victim of a sexual assault."     Ante at    .   The prosecutor

charged the twelve year old juvenile with forcible rape of an

eight year old.    Although the jury did not find the juvenile to

be delinquent on that charge, and instead found him delinquent

on the lesser included charge of statutory rape, the evidence

was sufficient to support a finding of forcible rape.     I do not

suggest that proof of force would be necessary for a finding of

abuse.     But, where there is substantial evidence of the use of
                                                                  13


physical or constructive force, the evidence would be more than

sufficient to prove abuse.

    It is worth noting that the court's analysis regarding

arbitrary enforcement is inconsistent with an interpretation of

§ 23 that would conclude as a matter of law that both children

have been abused solely because they engaged in the sexual

intercourse.   By distinguishing between the perpetrator and the

"victim," the court is essentially recognizing that, where both

children who engaged in sexual intercourse were under the age of

sixteen, the prosecutor may only charge with rape the child who

was not abused and may not prosecute the child who was abused.

In essence, using the rubric of the "victim," the court is

requiring something akin to substantial evidence of abuse as a

necessary predicate for a prosecution in these circumstances,

but is not requiring a finding of abuse as an element of the

offense that must be found by a jury.

    In sum, I agree with the court that, where both

participants in the sexual intercourse are under the age of

sixteen, the due process obligation to avoid arbitrary and

discriminatory enforcement requires more than mere proof of

sexual intercourse, which the court characterizes essentially as

reasonable grounds to believe that the juvenile is the

perpetrator rather than the victim.     I differ with the court

insofar as I would acknowledge that, in doing so, the court is
                                                                  14


essentially recognizing that § 23 requires some finding of abuse

where both participants in the sexual intercourse are under the

age of sixteen, and that such a finding cannot be implied as a

matter of law in such circumstances.   And, where abuse cannot be

reasonably implied as a matter of law, I would make abuse an

element of the crime that must be found by a jury beyond a

reasonable doubt, rather than ask a judge to determine whether a

"prosecutor reasonably could have concluded that the juvenile

was not a victim of a sexual assault."3

     For all these reasons, I concur only in the judgment.




     3 I do not address the defendant's argument regarding
selective enforcement because I agree with the court that there
is no evidence of it in this case. The risk of arbitrary and
discriminatory enforcement under the void-for-vagueness doctrine
is a due process claim; a claim of selective enforcement asserts
an equal protection claim, and is subject to equal protection
analysis. See Commonwealth v. Bernardo B., 453 Mass. 158, 168-
169 (2009). "To bring a claim of selective prosecution
successfully, the defendant bears the initial burden to 'present
evidence which raises at least a reasonable inference of
impermissible discrimination,' including evidence that 'a
broader class of persons than those prosecuted violated the law,
. . . that failure to prosecute was either consistent or
deliberate, . . . and that the decision not to prosecute was
based on an impermissible classification such as race, religion,
or sex.'" Id. at 168, quoting Commonwealth v. Lora, 451 Mass.
425, 437 (2008). We have considered claims of selective
prosecution where there was evidence that the prosecution
engaged in impermissible discrimination based on race, see Lora,
supra at 436-439; gender, see Bernardo B., supra at 173; and
sexual orientation, see Commonwealth v. Washington W., 457 Mass.
140, 147 (2010). The juvenile here presents no evidence that
his prosecution in this case was influenced by his race, gender,
or sexual orientation, or by any other impermissible
classification.
