The plain language of Mass. Gen. Laws ch. 274, § 2, involving aiding, counseling, hiring or otherwise procuring a principal to commit the crime, requires something more than mere acquiescence, although not necessarily physical participation, if there is association with the criminal venture and any significant participation in it. Presence at the scene of the crime, together with the failure to take affirmative steps to prevent it, does not render a person liable as principal. A person cannot be found guilty as an accessory before the fact simply because she knows a crime is going to be committed, even when this knowledge is coupled with her subsequent concealment of the completed crime. What is required to be convicted as an accessory before the fact is not only knowledge of the crime and a shared intent to bring it about, but also some sort of act that contributes to its happening.
The trial court convicted defendant as an accessory before the fact to the rape and indecent assault and battery on her mentally retarded daughter by her live-in boyfriend. Following the convictions, however, the trial judge reported the case to the appeals court pursuant to Rule 34. The trial court had concerns over questions of law as to whether defendant was properly found guilty, raising concerns on the defendant’s duty to take reasonable steps to prevent the sexual attacks by her live-in boyfriend.
Is the defendant, the mother of the mentally retarded victim, liable as an accessory before the fact for failing to report to the police her live-in boyfriend who previously signified his intent to commit the crimes?
On review, the court reversed defendant's convictions. The court held that the commonwealth failed to show beyond a reasonable doubt that defendant aided, counseled, hired, or procured her boyfriend to commit the rape and indecent assault and battery on her daughter or that defendant took any other action constituting participation in the crimes. The fact that defendant knew ahead of time that her boyfriend intended to commit the criminal acts, which she failed to immediately report to the police, did not make her guilty as an accessory before the fact under Mass. Gen. Laws ch. 274, § 2. Defendant's mere omission to take action to protect her child, without more, was not the equivalent of intentionally aiding in the commission of a felony against the child.