Criminal – Indictment amendments – Child rape

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Where an indictment was amended to change the subsection of the aggravated child rape statute (G.L.c. 265, §23A) under which the defendant was charged, the amendments changed an essential element of the crime charged, so the defendant’s convictions must be reversed.

“Here we are asked to determine whether it is permissible to amend an indictment to change the subsection of the aggravated child rape statute (G.L.c. 265, §23A) under which the defendant was charged. As discussed infra, because the amendments changed an essential element of the crime charged, we reverse those convictions. …

“There is no dispute that based on the victim’s age during the relevant time period, the subsection under which the defendant should have been indicted was §23A(a). Although the defendant does not claim that the amendments took him by surprise or forced him to change his defense, he argues that they were impermissible because the change was not of form but of substance. We agree. …

“… As it is not possible to prove that one was both under twelve years of age and twelve to sixteen years of age during a single offense, the amendment replacing §23A(b) with §23A(a) changed the elements to be proved. …

“… Because the defendant was indicted under one theory of aggravated child rape but convicted under a different theory with mutually exclusive elements, the amendment was substantive and therefore impermissible. …

“The Commonwealth additionally argues that the amendments should be permitted because they neither prejudiced the defendant nor changed the work of the grand jury. We note that the question of prejudice becomes relevant only when the amendment at issue is one of form. Substantive amendments are constitutionally defective regardless of whether they would prejudice the defense. …

“The judgments convicting the defendant of aggravated child rape are reversed, and those verdicts are set aside. We remand the case to the Superior Court for entry of judgments of not guilty on those indictments and for resentencing. …”

Commonwealth v. McCaffrey (Lawyers Weekly No. 10-005-26) (11 pages) (Budd, C.J.) A motion to amend indictments was heard by Susan E. Sullivan, J., and the cases were tried before Brian A. Davis, J., in Superior Court. Emma Quinn-Judge on appeal for the defendant; Arne Hantson for the commonwealth; Claudia Leis Bolgen, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief (Docket No. SJC-13750) (Jan. 12, 2026).

Click here to read the full text of the opinion.