by David Kim

The Supreme Judicial Court of Massachusetts unanimously held that amending an indictment to change the subsection of the aggravated child rape statute under which a defendant was charged constituted an impermissible substantive amendment that violated Article 12 of the Massachusetts Declaration of Rights. Reversing the Appeals Court, the Court vacated five aggravated child rape convictions and remanded for entry of not guilty judgments on those charges.

Background

A grand jury heard evidence that from 2013 to 2015, McCaffrey sexually abused the victim on multiple occasions when she was between 8 and 10 years old. The grand jury indicted McCaffrey on six counts of aggravated rape of a child under G.L. c. 265, § 23A(b). That subsection, however, applies only when the victim is between 12 and 16 years old and there exists more than a 10-year age gap between the defendant and the victim. Because the victim was younger than 12 during the relevant period, the Commonwealth moved to amend the indictments to charge McCaffrey under § 23A(a), which applies when the victim is under 12 and there exists more than a five-year age difference between the defendant and the victim. Over McCaffrey’s objection, the trial court granted the motion. A jury convicted McCaffrey on five of the six amended counts. The Appeals Court affirmed, and the Court granted further appellate review.

Analysis

The Court began by reaffirming that Article 12 guarantees that no person may be convicted of a crime punishable by state prison without first being indicted for that crime by a grand jury. Commonwealth v. Barbosa, 658 N.E.2d 966 (Mass. 1995). Consistent with this constitutional protection, Mass. R. Crim. P. 4(d) permits amendments to indictments only as to matters of form, not substance. Additionally, even amendments of form are allowed only if they do not result in prejudice or “materially change[ ] the work of the grand jury.” Commonwealth v. Knight, 773 N.E.2d 390 (Mass. 2002). The Court explained that amendments of form are those that do not alter the essential elements of the charged offense, whereas substantive amendments impermissibly change the crime itself. Id.; see, e.g., Commonwealth v. Bolden, 21 N.E.3d 150 (Mass. 2014) (changing the victim’s name was an amendment of form because the victim’s name was not an essential element of the crime).

The Court identified the double jeopardy test as one method for distinguishing amendments of form from amendments of substance. Knight. If successive prosecutions under the original and amended indictments would violate double jeopardy principles, the amendment is generally one of form; if successive prosecutions would be permissible, the amendment is substantive. However, the Court also made clear that this test is not dispositive in every case. Where the original indictment charges a lesser included offense of the amended indictment, successive prosecutions may still be barred by double jeopardy even though the amendment remains substantive because it adds an essential element. See Commonwealth v. Rodriguez, 68 N.E.3d 635 (Mass. 2017); Commonwealth v. Williams, 903 N.E.2d 222 (Mass. 2009).

Applying this framework, the Court examined the statutory structure of G.L. c. 265, § 23A. Subsection (a) requires proof that the victim was under 12 years old and that more than a five-year age gap existed. Subsection (b) requires proof that the victim was between 12 and 16 years old and that more than a 10-year age gap existed. The Court observed that these age-of-victim requirements are mutually exclusive. A victim cannot simultaneously be both under 12 and between 12 and 16 during a single offense. Because each subsection demands proof of distinct, non-overlapping elements, amending from one to the other necessarily altered the essential elements the Commonwealth was required to establish, the Court concluded.

The Commonwealth argued that both subsections merely represent different means of proving a single “aggravating factor” element. The Court rejected this characterization, determining that “the statutory language … clearly sets forth the specific elements required for a conviction under each subsection.” Commonwealth v. Burke, 457 N.E.2d 622 (Mass. 1983). The Court distinguished cases involving statutes that permit alternative theories of proving a single element, such as actual versus constructive possession, because § 23A expressly prescribes specific and mutually exclusive elemental requirements rather than alternative proof methods for one element.

The Court ruled that because the amendment was substantive, questions of prejudice to the defendant were irrelevant. Substantive amendments are constitutionally defective regardless of whether the defendant suffered actual prejudice or whether the grand jury heard evidence relevant to the amended charge. Barbosa.

Conclusion

Accordingly, the Court reversed McCaffrey’s five aggravated child rape convictions, ordered entry of not guilty judgments on those indictments, and remanded for resentencing on the remaining convictions. See: Commonwealth v. McCaffrey, 2026 Mass. LEXIS 5 (2026).  

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